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2015-3066

United States Court of Appeals
for the Federal Circuit
JOHN C. PARKINSON,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.

Petition for Review from the Merit Systems Protection Board
Case No. SF-0752-13-0032-I-2
PETITIONER’S SUPPLEMENTAL EN BANC BRIEF
Kathleen M. McClellan
National Security and Human Rights
Deputy Director
Jesselyn A. Radack
National Security and Human Rights
Director
Whistleblower and Source Protection
Program (WHISPeR)
ExposeFacts
910 17th Street NW Suite 800
Washington, D.C. 20006
(301) 351-2582
Kathleen@exposefacts.org
Jess@exposefacts.org
September 26, 2016
COUNSEL PRESS, LLC

(888) 277-3259

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UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
John C. Parkinson

Department of Justice

v.
Case No. 2015-3066

CERTIFICATE OF INTEREST
Counsel for the:
(petitioner)

(appellant)

(respondent)

(appellee)

(amicus)

(name of party)

STEUBEN FOODS, INC.
certifies the following (use "None" if applicable; use extra sheets if necessary):
1. Full Name of Party
Represented by me

John C. Parkinson

2. Name of Real Party in
3. Parent corporations and
interest (Please only include
publicly held Companies
that own 10 % or more
any real party in interest
of stock in the party
NOT identified in Question
3) represented by me is:
N/A
None

4. The names of all law firms and the partners or associates that appeared for the
party or amicus now represented by me in the trial court or agency or are expected
to appear in this court (and who have not or will not enter an appearance in this
case) are:
Kathleen M. McClellan Jesselyn A. Radack Whistleblower and Source Protection
Program (WHISPeR) ExposeFacts
Former Firm: Government Accountability Project.
September 26, 2016
Date

/s/ Kathleen M. McClellan
Signature of counsel

Please Note: All questions must be answered
cc:
i

Kathleen M. McClellan
Printed name of counsel

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TABLE OF CONTENTS
Page
CERTIFICATE OF INTEREST ................................................................................ i
TABLE OF AUTHORITIES ................................................................................... iv
STATEMENT OF RELATED CASES ................................................................. viii
JURISDICTIONAL STATEMENT ..........................................................................1
STATEMENT OF THE ISSUE .................................................................................1
FACTUAL BACKGROUND ....................................................................................1
STATEMENT OF THE CASE ..................................................................................6
SUMMARY OF ARGUMENT .................................................................................9
ARGUMENT ...........................................................................................................10
I.

The CSRA Unambiguously Allows a Whistleblower
Retaliation Affirmative Defense ..................................................................10
A.

FBI Preference Eligible Veterans Have MSPB Appeal Rights,
Including Affirmative Defenses ..............................................................10

B.

A Whistleblower Retaliation Affirmative Defense is Consistent
with the Whistleblower Protection Act and Section 2303 ......................15

C.

Section 7701(c)(2)(C) provides a separate affirmative defense
from 7701(c)(2)(A) and 7701(c)(2)(B) ...................................................18

II. The MSPB and This Court Can Adequately Protect Private
or Sensitive Information ...............................................................................19
III. The FBI Whistleblower Regulation Cannot Trump the CSRA ....................21
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CONCLUSION ........................................................................................................25
CERTIFICATE OF SERVICE ................................................................................26
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION,
TYPEFACE REQUIREMENTS AND TYPE STYLE REQUIREMENTS ...........27

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TABLE OF AUTHORITIES
Page(s)
Cases
Adakai, et. al. v. Dep’t of Interior,
20 M.S.P.R. 196 (1984) .......................................................................................14
Butler v. U.S. Postal Service,
10 M.S.P.R. 45 (1982) .........................................................................................13
Handy v. U.S. Postal Service,
754 F.2d 335 (Fed. Cir. 1985)..............................................................................18
Mack v. U.S. Postal Service,
48 M.S.P.R. 617 (1991) .......................................................................................13
McCollum v. NCUA,
417 F.3d 1332 (Fed. Cir. 2005)............................................................................18
Morales v. Trans World Airlines, Inc.,
504 U.S. 374 (1992) .............................................................................................14
Parkinson v. Dep’t of Justice,
No. SF-0752-13-0032-I-2 (M.S.P.B. Oct. 24, 2013) .............................................7
Perez v. FBI,
707 F. Supp. 891 (W.D. Tex. 1988) ....................................................................19
Rodriguez v. U.S.
480 U.S. 522 (1987) ...................................................................................... 11, 12
Social Security Administration v. Doyle,
45 M.S.P.R. 258 ...................................................................................................19
United States v. Fausto,
484 U.S. 439 (1988) .............................................................................................11
Van Lancker v. DOJ
119 M.S.P.R. 514 (2013) .....................................................................................13
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Statutes, Rules and Regulations
Freedom of Information Act 5 U.S.C. §552 ............................................................19
5 U.S.C. § 1101 ..........................................................................................................9
5 U.S.C. § 1204(a)(2) ...............................................................................................22
5 U.S.C. § 1213(a)(3) ...............................................................................................15
5 U.S.C. § 1214 .................................................................................................. 14-18
5 U.S.C. § 1214(a)(1)(D)(3) ....................................................................................17
5 U.S.C. § 1221 ..................................................................................... 14, 15, 17, 18
5 U.S.C. § 1221(b) ............................................................................................ 15, 17
5 U.S.C. § 2302 ......................................................................... 10, 12, 14, 15, 16, 17
5 U.S.C. § 2302(a)(2)(C)(ii) ............................................................................. 12, 16
5 U.S.C. § 2302(b) ............................................................................................ 10, 13
5 U.S.C. § 2303 ...................................................................................... 1, 8, 9, 13-18
5 U.S.C. § 2303(b) and (c) .......................................................................................17
5 U.S.C. § 7511(b)(7)...............................................................................................11
5 U.S.C. § 7511(b)(8)...................................................................... 1, 6, 9, 10, 11, 21
5 U.S.C. § 7512 ........................................................................................................10
5 U.S.C. § 7513 ...................................................1, 6, 8-10, 12, 14-17, 21, 22, 24, 25
5 U.S.C. § 7513(d) ............................................................... 1, 6, 8-10, 12, 21, 22, 24
5 U.S.C. § 7701 .............................................................. 1, 8, 9, 10, 13, 14, 16-19, 22
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5 U.S.C. § 7701(c) ............................................................................................ 13, 16
5 U.S.C. § 7701(c)(2) ..................................................................... 1, 8-10, 13, 14, 18
5 U.S.C. § 7701(c)(2)(A) ............................................................................ 13, 18, 19
5 U.S.C. § 7701(c)(2)(B) .................................................................................. 13, 18
5 U.S.C. § 7701(c)(2)(C) ................................................................ 1, 8, 9, 10, 13, 19
5 U.S.C. § 7703 ................................................................................................... 1, 24
5 C.F.R. § 1201.72 ...................................................................................................20
5 C.F.R. § 1201.147. ................................................................................................19
5 C.F.R. § 1209.2 .....................................................................................................16
5 C.F.R. § 27.3 .........................................................................................................22
5 C.F.R. § 27 ..................................................................................... 3, 13, 14, 17, 22

Other Authorities
Judge’s Handbook, Merit Systems Protection Board, at 74-77 (2012) ...................19
Civil Service Due Process Amendments, Pub. L. No. 101-376,
104 Stat. 461 (1990) .............................................................................................11
Exec. Order No. 13526 § 1.7(a)(1), (a)(2) ...............................................................21
FBI. H.R. Rep. No. 101-328, as reprinted in 1990 U.S.C.C.A.N. 695, 699............11
H.R. Rep. No. 101-328, as reprinted in 1990 U.S.C.C.A.N. 695, 697 ....................12
http://www.gao.gov/assets/670/668055.pdf ............................................................23
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http://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=241913&version=2
42182&application=ACROBAT .........................................................................19
https://oig.justice.gov/reports/FBI/e0902/final.pdf ............................................ 4, 24
U.S. Dep’t of Justice, Office of the Inspector General, Evaluation and Inspections
Divisions, Review of the Federal Bureau of Investigation’s Disciplinary System,
Rep. No. 1-2009-02, (May 2009).........................................................................24
U.S. Government Accountability Office, Report to the Chairman, Committee on
the Judiciary, U.S. Senate, Whistleblower Protection: Additional Actions
Needed to Improve DOJ’s Handling of FBI Retaliation Complaints, No. GAO15-112 (January 2015) .........................................................................................23

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STATEMENT OF RELATED CASES
This case has not previously been before this Court. Counsel is unaware of
any appeal in or from the same agency decision that was before this or any other
appellate court. Counsel is also unaware of any cases pending in this or any other
court that will be directly affected by this Court’s decision in the pending appeal.

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JURISDICTIONAL STATEMENT
Pursuant to 5 U.S.C. §§ 7511(b)(8) and 7513(d), the Merit Systems
Protection Board (“MSPB”) has jurisdiction to review the decision to remove
Petitioner John C. Parkinson, a preference-eligible veteran, from the Federal
Bureau of Investigation (FBI). This Court has jurisdiction to review the MSPB’s
final decision pursuant to 5 U.S.C. § 7703. The MSPB decision appealed from is a
final decision resolving all issues in the case, dated October 10, 2014. This appeal
was timely filed on December 8, 2014.
STATEMENT OF THE ISSUE
Pursuant to this Court’s Rehearing Order, the sole issue addressed herein is:
Whether a preference eligible employee of the FBI challenging an adverse
employment action before the MSPB under 5 U.S.C. § 7513(d) may raise
whistleblower reprisal in violation of 5 U.S.C. § 2303 as an affirmative defense
under 5 U.S.C. § 7701(c)(2)(C). See Rehearing Order, Parkinson v. Dep’t of
Justice, No. 2015-3066 (Fed. Cir. Aug. 8, 2016)
FACTUAL BACKGROUND
LtCol John C. Parkinson began his ten-year tenure at the FBI in 1999, and
throughout his FBI career also served in the Marine Corps Reserves, including
three sets of mobilization orders in support of the global war on terror, two of
which involved either combat or hazardous duty deployments. Joint Appendix
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(“JA”) 784-785. In 2004, Mr. Parkinson was deployed to Iraq, initially to Baghdad
and later to Fallujah, where he worked with the Defense Intelligence Agency
(DIA) in a classified capacity. JA 786. After being recalled from Iraq, Mr.
Parkinson served as a material witness in two U.S. government investigations into
detainee abuse and returned to a position as an FBI Special Agent in the
Sacramento Division. JA 211.
From approximately 2005 to 2008, Mr. Parkinson served as Team Leader for
the Special Operations Group (SOG), a surveillance team operating out of an
undercover offsite facility. In February 2008, Mr. Parkinson and several members
of the SOG squad made protected whistleblowing disclosures to Assistant Special
Agent in Charge (ASAC) Gregory Cox that two FBI pilots were engaging in
misconduct, including misuse of FBI aircraft to solicit prostitutes, massive time
and attendance fraud, using FBI computers to view pornography, and destruction
of a security camera at the new SOG undercover facility. See JA 236.
In August 2008, ASAC Cox and Mr. Parkinson’s supervisor, Supervisory
Special Agent (SSA) Leticia Lucero, involuntarily reassigned Mr. Parkinson away
from his SOG Team Leader position and issued him a low-rating performance
evaluation. JA 365-366. Mr. Parkinson complained that the reassignment and
downgraded performance evaluation were retaliatory adverse personnel actions.
See JA 794-96. Pursuant to the FBI’s whistleblower regulation, the Department of
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Justice Office of Inspector General (OIG) opened a whistleblower retaliation
investigation. JA 387, 794-796; See also 28 C.F.R. Part 27. The OIG first
contacted Mr. Parkinson in January 2009 about his retaliation complaint. JA 794.
At the request of OIG investigators, Mr. Parkinson met frequently with the OIG for
over a year. JA 794-798.
The OIG’s whistleblower retaliation investigation focused on SSA Lucero,
ASAC Cox, and Special Agent in Charge (SAC) Drew Parenti. Id. While the OIG
was interviewing SSA Lucero, ASAC Cox, and SAC Parenti as subjects of the
whistleblower retaliation investigation, the three officials falsely accused Mr.
Parkinson of misusing $77,000. JA 164-165. Despite the fact that the retaliation
investigation was ongoing, the OIG investigators instructed the targets of the
retaliation investigation to send their allegations against the complainant (Mr.
Parkinson) to the OIG for investigation. JA 165, 724. Based on the (now
disproven) allegations from the subjects of its own retaliation investigation, the
OIG voluntarily opened a criminal investigation 1 with Mr. Parkinson as the target
in August 2009. JA 521. The OIG was not required to open an investigation with
Mr. Parkinson as the target, and, in fact, the vast majority of FBI employee
misconduct investigations are conducted by the FBI, not the OIG. See U.S. Dep’t
of Justice, Office of the Inspector General, Evaluation and Inspections Divisions,
1

The U.S. attorney declined to pursue a criminal case against Mr. Parkinson. JA
394.
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Review of the Federal Bureau of Investigation’s Disciplinary System, Rep. No. 12009-02, at iii fn. 6, (May 2009), available at
https://oig.justice.gov/reports/FBI/e0902/final.pdf (Noting that OIG investigated
only 6% of FBI employee misconduct allegations, and the FBI investigated 90% of
FBI employee misconduct allegations).
The OIG did not tell Mr. Parkinson he was now a target, rather than the
complainant. The same OIG investigators continued to meet with Mr. Parkinson
and gather evidence from him for nearly ten months, leading Mr. Parkinson to
believe he was only a complainant when, in reality, he was a target. JA 797-798.
After a witness contacted Mr. Parkinson and told Mr. Parkinson he may actually be
the target, Mr. Parkinson confronted the OIG investigators. His un-rebutted hearing
testimony described the interaction:
I went to the OIG office in San Bruno at [the OIG
investigator’s] invitation with the understanding that I was continuing
to provide statements in the Whistleblower Protection Act
investigation. I confronted both [the investigator] and his [ASAC]
with the question, “Do you have an investigation open on me?”
They both – and we were in their conference room. They
shifted in their chairs, looked at each other, looked back at me, and
kind of mumbled, “Yes.”
And I said, “Is this a criminal investigation?”
And again, “Yes.” Very uncomfortable body language.
And I said, “Well, it would have been I think professional of
you to notify me of this because I have been speaking to you in a
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specific capacity with the understanding that everything I’m telling
you was within my protected disclosures,” so.
JA 797-798
When OIG finally told Mr. Parkinson that he was the target of an investigation,
OIG compelled Mr. Parkinson to a sworn interview. JA 619-621. However, OIG
instructed Mr. Parkinson not to bring up whistleblower retaliation during the
interview. JA 624-625, 721-22, 811.
Upon conclusion of the investigation into the allegations that Mr. Parkinson
misused $77,000, the OIG concluded that “for the most part [Mr. Parkinson] used
these funds appropriately.” JA 522. Then, the OIG sua sponte raised “additional
allegations about Parkinson” that Mr. Parkinson had “obstructed the FBI’s efforts
to reconcile the money spent” on the new offsite facility, removed furniture from
the new facility, and created false documents concerning the removal of furniture.
JA 521. Even though OIG forbade Mr. Parkinson from discussing whistleblower
retaliation during the compelled interview, the OIG Report included a finding that
there was no whistleblower retaliation when the targets of the retaliation
investigation (SSA Lucero, ASAC Cox, and SAC Parenti) made the
unsubstantiated allegations against Mr. Parkinson. JA 525-528.
In October 2010, Mr. Parkinson returned to the Marines Corps, where he
received positive performance evaluations, was recommended for promotion, and
received a Joint Service Achievement Medal and a Joint Service Commendation
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Medal. See JA 241, 273-292. Meanwhile, the FBI’s Office of Professional
Responsibility (OPR) used the OIG Report as the basis to dismiss Mr. Parkinson
from the FBI. 2 JA 141.
STATEMENT OF THE CASE
In October 2011, based on the OIG Report, the FBI proposed removing Mr.
Parkinson from the FBI for four charges of misconduct. JA 141. On April 26,
2012, OPR sustained all of the charges, and terminated Mr. Parkinson for three of
four offenses. Mr. Parkinson appealed his removal to the MSPB. See 5 U.S.C. §§
7511(b)(8) and 7513(d) (allowing preference-eligible veterans to appeal certain
adverse personnel actions).
At the MSPB, Mr. Parkinson raised affirmative defenses of violations of the
Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA) and whistleblower retaliation. The Administrative Judge dismissed the
affirmative defenses and restricted discovery in accordance with that ruling. JA
200-202. On the merits, the Administrative Judge dismissed two charges, sustained
two charges (Lack of Candor/Lying Under Oath and OPR Matter-Obstruction), and

2

OPR’s Report incorrectly states that the OIG inquiry was predicated on an
allegation that Mr. Parkinson “removed furniture from an offsite, in violation of
FBI Offense Code 4.5 (Fraud/Theft),” leaving out the primary predicate for the
OIG investigation: the completely false accusation that Mr. Parkinson misused
$77,000. JA 141; See JA 159-163 (OIG Report identifying predicate). The Theft
charge was not sustained by the MSPB, and has been abandoned by the FBI.
Parkinson v. Dep’t of Justice, 815 F.3d 757, 762 fn. 2 (Fed. Cir. 2016).
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sustained the removal penalty. The full MSPB sustained the Administrative
Judge’s ruling. Parkinson v. Dep’t of Justice, No. SF-0752-13-0032-I-2 (M.S.P.B.
Oct. 24, 2013). Vice Chairman Wagner dissented as to the affirmative defenses,
holding that she would have allowed Mr. Parkinson to assert the USERRA and
whistleblower retaliation affirmative defenses. Wagner, Dissenting, Parkinson v.
Dep’t of Justice, No. SF-0752-13-0032-I-2 (M.S.P.B. Oct. 24, 2013).
Before this Court, Mr. Parkinson appealed the sustained charges, removal
penalty, and dismissal of his affirmative defenses. 3 On February 29, 2016, this
Court reversed-in-part, vacated-in-part, and remanded the case. Parkinson v. Dep’t
of Justice, 815 F.3d 757 (Fed. Cir. 2016). The panel held unanimously (1) that the
Lack of Candor/Lying under Oath charge could not be sustained; (2) that the
Obstruction – OPR Matter charge was properly sustained; (3) that the MSPB
properly dismissed the USERRA affirmative defense; and (4) that, on remand, the
maximum remaining penalty for the remaining charge (Obstruction – OPR Matter)
was a 30-day suspension. Id., at 757-777. The panel majority also held that the
MSPB erred by dismissing Mr. Parkinson’s whistleblower retaliation affirmative
defense. Id., at 770-774. Judge Taranto dissented as to the whistleblower retaliation

3

The Justice Department did not appeal the two charges that were not sustained.
(Theft and Unprofessional Conduct – On Duty). DOJ Docketing Statement,
Parkinson v. Dep’t of Justice, 2015-3066 (Fed. Cir. Feb. 10, 2015).
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ruling, writing that the MSPB properly dismissed the whistleblower retaliation
defense. Id., at 777-780.
On June 13, 2016, the Justice Department petitioned for rehearing en banc
on the grounds that the panel decision erred in holding that Mr. Parkinson could
assert a whistleblower retaliation affirmative defense. Petition for Rehearing En
Banc, 2015-3066, Parkinson v. Dep’t of Justice (Fed. Cir. Jun. 13, 2016). Mr.
Parkinson opposed the petition, arguing that the Panel Decision properly allowed
the whistleblower retaliation affirmative defense. Petitioner’s Response Opposing
Respondent’s Petition for Rehearing En Banc, 2015-3066 (Fed. Circ. Jun. 28,
2016). On August 8, 2016, this Court granted the petition for rehearing, vacated the
panel decision, and reinstated the appeal. Rehearing Order, Parkinson v. Dep’t of
Justice, No. 2015-3066 (Fed. Cir. Aug. 8, 2016); See also Errata, Parkinson v.
Dep’t of Justice, No. 2015-3066 (Fed. Cir. Aug. 11, 2016). Supplemental briefing
for en banc rehearing is limited to the issue of whether a preference eligible
employee of the FBI challenging an adverse employment action before the MSPB
under 5 U.S.C. § 7513(d) may raise whistleblower reprisal in violation of 5 U.S.C.
§ 2303 as an affirmative defense under 5 U.S.C. § 7701(c)(2)(C). Rehearing Order,
Parkinson v. Dep’t of Justice, No. 2015-3066, at 2 (Fed. Cir. Aug. 8, 2016)

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SUMMARY OF ARGUMENT
The Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. § 1101 et seq.,
provides preference eligible veterans at the FBI with a right to appeal certain
adverse actions to the MSPB. 5 U.S.C. §§ 7511(b)(8), 7512, 7513(d). The CSRA
specifies that employees can assert affirmative defenses. 5 U.S.C. § 7701(c)(2).
Because there is no express or implicit congressional intent to revoke or repeal
affirmative defenses for preference eligible veterans at the FBI, this Court should
not preclude Mr. Parkinson from raising whistleblower retaliation in violation of 5
U.S.C. § 2303 as an affirmative defense under 5 U.S.C. § 7701(c)(2)(C). An
affirmative defense is consistent with the statutory scheme governing
whistleblower retaliation complaints – both for employees at the FBI and
employees at other government agencies – because the scheme is expressly
intended to preserve employees’ rights to bring adverse action appeals to the
MSPB under section 7513. The MSPB is authorized to interpret section 2303 when
the MSPB assumes jurisdiction under section 7513. The MSPB and this Court can
adequately handle sensitive or classified information associated with appeals
brought under section 7513(d), including information pertaining to affirmative
defenses. Finally, a separate remedial scheme for FBI employees’ whistleblower
retaliation complaints does not trump the CSRA’s clear grant of appeal rights,
including affirmative defenses, to preference eligible veterans.
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ARGUMENT
I.

The CSRA Unambiguously Allows a Whistleblower Retaliation
Affirmative Defense
A.

FBI Preference Eligible Veterans Have MSPB Appeal Rights,
Including Affirmative Defenses

The plain, unambiguous language of the CSRA provides preference-eligible
veterans at the FBI with appeal rights at the MSPB. 5 U.S.C. §7511(b)(8)
(preference eligible veterans at the FBI are covered employees); 5 U.S.C. § 7512
(removals are a covered action). When the MSPB assumes jurisdiction over a
personnel action, the process is governed by section 7701. See 5 U.S.C. 7513(d)
(“An employee 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.”).
Section 7701 unambiguously provides for affirmative defenses, mandating
that the MSPB cannot sustain an agency’s decision “if the employee . . . (A) shows
harmful error in the application of the agency’s procedures in arriving at such a
decision; (B) shows that the decision was based on any prohibited personnel
practice described in section 2302(b) of this title; or (C) shows that the decision
was not in accordance with law.” 5 U.S.C. § 7701(c)(2). Section 7701 does not
contain a limit on the affirmative defense of “not in accordance with the law.”
Given that the affirmative defense of showing that an agency decision is “not in
accordance with law” is expressly granted by section 7701(c)(2)(C), this Court
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should not repeal section 7701(c)(2)(C) for a certain segment of employees without
clear congressional intent. See Rodriguez v. U.S. 480 U.S. 522, 524 (1987)
(repeals by implication are not favored); United States v. Fausto, 484 U.S. 439,
452 (1988) (excepted service employees excluded from CSRA only with a clear
congressional intent), superseded by statute, Civil Service Due Process
Amendments, Pub. L. No. 101-376, 104 Stat. 461 (1990).
The legislative history of the CSRA indicates Congress clearly intended (1)
for preference eligible veterans at the FBI to have appeal rights that other FBI
employees do not have; and (2) for preference eligible veterans at the FBI to have
appeal rights that veterans working at other national security agencies do not have.
FBI employees who are not preference eligible veterans cannot appeal adverse
actions to the MSPB. 5 U.S.C. § 7511(b)(8) (excluding non-preference eligible
veterans from MSPB’s jurisdiction). Congress recognized as much in enacting the
CSRA and amendments, and made clear the intent to maintain unique appeal rights
for preference eligible veterans at the FBI. H.R. Rep. No. 101-328, as reprinted in
1990 U.S.C.C.A.N. 695, 699 (“The bill limits the procedural protections for
employees of . . . the [FBI] solely to preference eligible, thereby preserving the
status quo.”) (emphasis added). While FBI preference eligible veterans have
appeal rights, those rights do not extend to all national security employees. See 5
U.S.C. § 7511(b)(7) (excluding all CIA employees, including veterans, from
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MSPB jurisdiction). Congress also recognized this distinction in enacting the
CSRA. See H.R. Rep. No. 101-328, as reprinted in 1990 U.S.C.C.A.N. 695, 697
(“[at] some agencies, such as the [CIA] . . . even veterans do not have appeal
rights.”). The legislative history does not indicate an intent to revoke or limit any
affirmative defenses for FBI preference eligible veterans bringing appeals to the
MSPB under section 7513(d). Rather, the legislative history exhibits a clear
congressional intent to preserve MSPB appeal rights for FBI preference eligible
veterans. This Court should not infer an intent to revoke affirmative defenses when
Congress explicitly stated an intent to preserve extant rights for FBI preference
eligible veterans. See, e.g., Rodriguez, 480 U.S. at 424.
The Justice Department has argued that Congress intended to preclude an
affirmative defense of whistleblower retaliation because Congress excluded FBI
employees from the Whistleblower Protection Act (WPA), specifically 5 U.S.C. §
2302. Petition for Rehearing En Banc, Parkinson v. Dep’t of Justice, 2015-3066, at
8 (Fed. Cir. Jun. 13, 2016); See also 5 U.S.C. 2302(a)(2)(C)(ii) (excluding FBI
employees from section 2302). This argument is unpersuasive because the
exclusion of FBI employees from the WPA cannot undermine the express grant of
MSPB appeal rights to preference eligible veterans at the FBI. The Justice
Department’s argument also contradicts the MSPB’s longstanding interpretation of
appeal rights as inclusive of affirmative defenses, including whistleblower
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retaliation. See, e.g., Butler v. U.S. Postal Service, 10 M.S.P.R. 45, 48 (1982)
(holding that all federal employees who have appeal rights have the same rights);
Mack v. U.S. Postal Service, 48 M.S.P.R. 617, 621 (1991) (holding that Postal
Services employees can raise a whistleblower retaliation affirmative defense even
though they are excluded from the WPA); Wagner, Dissenting, Van Lancker v.
DOJ 119 M.S.P.R. 514, 520-525 (2013) (“[M]uch like FBI employees, Postal
Service employees are provided a separate administrative procedure, set forth in
regulations, from which they may received protection from making whistleblower
protected disclosures.”). Moreover, the Justice Department’s argument based on
the FBI’s exclusion from WPA is only relevant to whether Mr. Parkinson could
assert an affirmative defense under section 7701 (c)(2)(B), which provides for an
affirmative defense for actions “based on any prohibited personnel practice
described in section 2302(b).” 4 The exclusion of FBI employees from the WPA
has no bearing on the affirmative defenses of harmful error under section
7701(c)(2)(A) or of “not in accordance with the law” under 7701(c)(2)(C).
The implementing regulation for section 2303, 5 C.F.R. Part 27, lays out an
administrative process for FBI whistleblowers, which applies to Mr. Parkinson.

4

Mr. Parkinson does not concede that he is precluded from bringing an affirmative
defense under section 7701(c)(2)(B), but, in accordance with this Court’s
Rehearing Order, does not address the question of whether he can assert a defense
under 7701(c)(2)(B) in supplemental briefing. Rehearing Order, Parkinson v.
Dep’t of Justice, No. 2015-3066, at 2 (Fed. Cir. Aug. 8, 2016).
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However, this is not a situation where Congress created a separate remedial
scheme aimed at limiting what Mr. Parkinson could raise at the MSPB in an appeal
under section 7513. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384
(1992) (specific statutory provisions govern the general). Sections 1214, 1221 and
2302 provide a system for some federal employees (but not FBI employees) to
bring whistleblower retaliation appeals to the Office of Special Counsel (OSC) and
MSPB. Section 2303 and 28 C.F.R. Part 27 provide a separate system for FBI
employees to adjudicate whistleblower retaliation complaints. Regardless of
whether an appeal includes a whistleblower retaliation claim or defense, sections
7511, 7513, and 7701 provide MSPB appeal rights for some employees (including
preference eligible veterans at the FBI) for certain adverse personnel actions, and
section 7701(c)(2) unambiguously includes affirmative defenses. Moreover, as
described infra, the statutory scheme is consistent with allowing a whistleblower
retaliation affirmative defense based on section 2303.
It is a longstanding principle that the MSPB regularly interprets laws,
regulations and Collective Bargain Agreements relevant to its jurisdiction. Adakai,
et. al. v. Dep’t of Interior, 20 M.S.P.R. 196, 202 (1984) (MSPB has authority to
review “relevant provisions of law, regulations or negotiation procedure as
circumstances warrant.”); See also Cornelius v. Nutt, 472 US 648 (1985) (MSPB
interprets Collective Bargaining Agreements). There is no provision in section
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2303, nor any other statute, that bars MSPB from interpreting the statute where
MSPB assumes jurisdiction under section 7513. Nowhere in the statutory scheme
or legislative history is a preference eligible veteran at the FBI precluded from
asserting an affirmative defense of “not in accordance with the law,” based on
section 2303 or any other law the agency may violate in taking a personnel action.
B.

A Whistleblower Retaliation Affirmative Defense is Consistent with
the Whistleblower Protection Act and Section 2303

When read together, the WPA and 5 U.S.C. § 2303 favor allowing Mr.
Parkinson to assert an affirmative defense of whistleblower retaliation before the
MSPB. The WPA prohibits retaliation against most federal employees. 5 U.S.C. §
2302. 5 U.S.C. § 1221(a) allows covered federal employees who are subjected to
whistleblower retaliation to seek corrective action before the MSPB in an
Individual Right of Action (IRA). 5 U.S.C. § 1213(a)(3) requires employees to first
bring whistleblower retaliation complaints to the OSC before bringing an IRA case
before the MSPB.
Sections 1221 and 1214 specifically delineate that nothing in the statute is
intended to interfere with MSPB’s jurisdiction over adverse actions in section
7513. 5 U.S.C. § 1221(b) provides:
This section may not be construed to prohibit any employee, former
employee, or applicant for employment from seeking corrective action
from the Merit Systems Protection Board before seeking corrective
action from the Special Counsel, if such employee, former employee,
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or applicant for employment has the right to appeal directly to the
Board under any law, rule, or regulation.
Similarly, 5 U.S.C. § 1214(a)(1)(D)(3) provides:
Except in a case in which an employee, former employee, or applicant
for employment has the right to appeal directly to the Merit Systems
Protection Board under any law, rule, or regulation, any such
employee, former employee, or applicant shall seek corrective action
from the Special Counsel before seeking corrective action from the
Board . . .
Therefore, an employee covered by section 2302 who is subjected to an
adverse action covered by section 7513 can bring a whistleblower affirmative
defense before the MSPB without first going through the OSC. See 5 C.F.R. §
1209.2. For example, an employee who is terminated can appeal the removal
action to the MSPB and is not required to take a claim that the removal was
whistleblower retaliation through the OSC process first – the claim is treated as an
affirmative defense under section 7701(c). An appeal under section 7513
effectively allows an employee to bypass the OSC in raising a whistleblower claim
before the MSPB.
Many national security employees, including FBI employees, are excluded
from bringing an IRA to the MSPB. 5 U.S.C. 2302(a)(2)(C)(ii). With respect to the
FBI, however, whistleblower retaliation is prohibited by 5 U.S.C. § 2303. Section
2303 instructs the Justice Department to implement regulations to enforce the
section, and instructs the President to provide for enforcement of the section. 5
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U.S.C. § 2303(b) and (c); See also 5 C.F.R. Part 27 (FBI whistleblower
regulation).
When section 2303 is read in conjunction with sections 1214, 1221, and
2302, the statutory scheme supports allowing a whistleblower retaliation
affirmative defense for preference eligible veterans at the FBI, who have
undisputed appeal rights to the MSPB. Section 2303(c) incorporates sections 1221
and 1214: “The President shall provide for the enforcement of this section in a
manner consistent with applicable provisions of sections 1214 and 1221.” To
prohibit affirmative defenses afforded by section 7701 is not consistent with 1214
and 1221. The Justice Department has argued that section 2303 gives the President
exclusive authority over all FBI whistleblower claims, when in fact the President’s
authority is limited by statute to enforcement consistent with sections 1221 and
1214. No enforcement of section 2303 can be consistent with sections 1221 and
1214 while curtailing rights afforded under sections 7513 and 7701, because both
section 1221 and section 1214 specify that they are not to be construed to limit
direct MSPB appeal rights. 5 U.S.C. §§ 1214(a)(1)(D)(3) and 1221(b).
Just as an employee covered by WPA and bringing an MSPB appeal under
section 7513 is not required to first bring the whistleblower retaliation portion of
her case through OSC, Mr. Parkinson can appeal his termination directly to the
MSPB and bring up whatever affirmative defenses are authorized by section 7701
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(c)(2). The statutory scheme requiring that section 2303 be consistent with 1221
and 1214 and the express requirement that 1221 and 1214 not be construed to limit
direct MSPB appeal rights allows Mr. Parkinson to assert an affirmative defense of
“not in accordance with the law” based on section 2303.
C.

Section 7701(c)(2)(C) provides a separate affirmative defense from
7701(c)(2)(A) and 7701(c)(2)(B)

5 U.S.C. section 7701(c)(2)(C) prohibits the MSPB from upholding actions
if an employee “shows that the decision was not in accordance with law.”
Whistleblower retaliation at the FBI is clearly not in accordance with the law. 5
U.S.C. § 2303. Section 7701(c)(2)(C) does not specify which law, but this Court
has made clear it provides an affirmative defense separate from harmful error as
provided by section 7701(c)(2)(A). Handy v. U.S. Postal Service, 754 F.2d 335,
337 (Fed. Cir. 1985). In order to prove “not in accordance with law,” this Court has
recognized that an employee need not also prove a separate affirmative defense.
McCollum v. NCUA, 417 F.3d 1332, 1339 (Fed. Cir. 2005). As applicable here, if
Mr. Parkinson shows the agency’s removal decision was not in accordance with
the law, it is not required that he prove affirmative defenses under 7701(c)(2)(A)
and 7701(c)(2)(B). The panel decision assumed without deciding that Section
7701(c)(2)(B) did not apply to Mr. Parkinson. Parkinson, 815 F.3d, at 771. In that
case, then, if Mr. Parkinson is disqualified from asserting a defense under
7701(c)(2)(B) (which Mr. Parkinson does not concede), there is no preclusion in
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sections 7701 or any other statute form Mr. Parkinson asserting other separate
affirmative defenses under sections 7701(c)(2)(A) and 7701(c)(2)(C).
II.

The MSPB and This Court Can Adequately Protect Private or Sensitive
Information
The Justice Department has made the vague assertion that allowing the

MSPB to consider an affirmative defense of whistleblower retaliation would risk
“unintended disclosures of sensitive or classified national security information.”
Petition for Rehearing En Banc, 2015-3066, at 10, Parkinson v. Dep’t of Justice
(Fed. Cir. Jun. 13, 2016). This is inaccurate. The MSPB regularly handles sensitive
information, and has existing procedures for handling private and classified
information. See, e.g. Judge’s Handbook, Merit Systems Protection Board, at 7477 (2012), available at
http://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=241913&version=2
42182&application=ACROBAT (discussing sealed cases, including national
security and classified information); Social Security Administration v. Doyle, 45
M.S.P.R. 258, 261-62 (MSPB disclosure rules are governed by the Freedom of
Information Act 5 U.S.C. §552). MSPB’s discovery procedures also allow for
protective orders. See 5 C.F.R. § 1201.147. Moreover, for decades, the courts have
regularly and successfully handled Equal Employment Opportunity cases brought
by FBI employees, with no disclosure of sensitive or classified information. See,
e.g., Perez v. FBI, 707 F. Supp. 891, 897 (W.D. Tex. 1988) (“The Court exercised
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control over the discovery process attempting to balance the Plaintiff's classmember's need for access to proof in support of their claims against the significant
needs of the FBI and Justice Department for confidentiality and the protection of
its methods, sources, and mission.”).
The argument that an inclusion of whistleblowing issues in a removal case
before the MSPB risks disclosure of sensitive or classified information rings
especially hollow in Mr. Parkinson’s case given that the OIG Report that led to Mr.
Parkinson’s removal – surely to be at issue in an MSPB case challenging the
removal – itself made a finding that there was no whistleblower retaliation. JA
525-528. In Mr. Parkinson’s case, the FBI based an appealable personnel action on
an OIG Report that made findings on whistleblower retaliation, with no mention of
“risk of unintended disclosure of sensitive or classified national security
information.” But, now that it is the employee (rather than the FBI) who seeks to
raise whistleblower retaliation, a generalized risk of “unintended disclosure of
sensitive of classified national security information” has materialized.
Regardless of whether Mr. Parkinson asserts a whistleblower retaliation
affirmative defense, he is entitled to discovery in an MSPB appeal challenging the
removal. See 5 C.F.R. § 1201.72. Given that classifying information to “conceal
violations of law, inefficiency, or administrative error” or to “prevent
embarrassment to a person, organization, or agency” is prohibited by Executive
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Order, there is no reason a whistleblower retaliation affirmative defense would risk
disclosure of any more sensitive or classified information than the merits of a
removal appeal brought by a preference-eligible veteran at the FBI. See Exec.
Order No. 13526 § 1.7(a)(1), (a)(2). The FBI may not want the substance of
whistleblowers’ disclosures evidencing illegality, mismanagement, fraud, waste of
funds, abuse of authority, or dangers to health and public safety to be seen outside
the FBI, but such a desire cannot contravene clear statutory language allowing
preference-eligible veterans full appeal rights before the MSPB.
Allowing an affirmative defense of whistleblowing retaliation is not
equivalent to allowing an independent cause of action. An FBI preference eligible
veteran can only bring up whistleblower retaliation at the MSPB if he or she is
subjected to an adverse action over which the MSPB already has undisputed
jurisdiction under section 7513. In other words, MSPB’s jurisdiction in Mr.
Parkinson’s case is entirely dependent upon the FBI first taking an adverse action,
and with full knowledge of the potential appeals that could result from that adverse
action.
III.

The FBI Whistleblower Regulation Cannot Trump the CSRA
Congress intended for some FBI employees (preference eligible veterans) to

bring employment cases outside the FBI to the MSPB and this Court. 5 U.S.C. §
7511(b)(8); 5 U.S.C. § 7513(d). Once given jurisdiction over an agency action, the
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MSPB “shall order any Federal agency or employee to comply with any order or
decision issued by the Board” 5 U.S.C. § 1204(a)(2).
The Justice Department has argued that the existence of a whistleblower
retaliation investigation process under the FBI’s whistleblower regulation (28
C.F.R. Part 27) has supremacy over an affirmative defense expressly authorized by
section 7701. See Petition for Rehearing En Banc, 2015-3066, at 8-10, Parkinson
v. Dep’t of Justice (Fed. Cir. Jun. 13, 2016). Should the Court accept the Justice
Department’s argument, the result would be an inefficient and inherently unjust
system wherein preference eligible veterans’ rights are prejudiced as they are
forced to challenge adverse personnel actions partly at MSPB and partly at the
Justice Department’s Office of Attorney Recruitment and Management (OARM)
(which adjudicates FBI whistleblower retaliation claims internally). For example,
in Mr. Parkinson’s case, Mr. Parkinson would be required to parse out the
whistleblower retaliation in his removal case, and start (again) the process of
making a retaliation complaint under 5 C.F.R. 27.3 that the removal was
whistleblower retaliation. Mr. Parkinson would be forced to simultaneously litigate
the same removal issue before the MSPB and OARM, with MSPB unable to
consider a critical aspect of the case despite having jurisdiction to review the
removal action. Such a result materially interferes with Mr. Parkinson’s appeal
rights under 7513(d). It is particularly unjust in Mr. Parkinson’s case because it is
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Mr. Parkinson’s reporting whistleblower retaliation under the FBI’s whistleblower
regulation (for the downgraded performance appraisal and involuntary transfer)
that directly led to the OIG investigation targeting him and the removal action at
issue. See JA 794-798. Also, requiring preference eligible veterans to
simultaneously litigate removal at the MSPB and a claim that the removal was
whistleblower retaliation at OARM will almost certainly require years of
additional costly litigation at OARM. See U.S. Government Accountability Office,
Report to the Chairman, Committee on the Judiciary, U.S. Senate, Whistleblower
Protection: Additional Actions Needed to Improve DOJ’s Handling of FBI
Retaliation Complaints, No. GAO-15-112 (January 2015), available at
http://www.gao.gov/assets/670/668055.pdf. (“DOJ took from 2 to 10.6 years to
resolve the 4 complaints we reviewed that DOJ adjudicated, and DOJ did not
provide complainants with estimates of when to expect DOJ decisions throughout
the complaint process.”).
The Justice Department has argued that if OARM and MSPB make opposite
findings, “it is unclear which ruling would prevail or have preclusive effect”
thereby placing “the FBI in the untenable position of determining whether, and
how, to comply with conflicting orders.” See Petition for Rehearing En Banc,
2015-3066, at 15, Parkinson v. Dep’t of Justice (Fed. Cir. Jun. 13, 2016). The
Justice Department’s argument reflects a misunderstanding of the CSRA’s grant of
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appellate authority to the MSPB and this Court. The FBI is part of the Justice
Department. The Justice Department is the parent federal agency, and MSPB can
order the Justice Department to comply with its rulings where MSPB has
jurisdiction. The MSPB’s rulings are then appealable to this Court. 5 U.S.C. §
7703. The MSPB has undisputed jurisdiction over the removal action, regardless of
whether the FBI, OARM, or the Attorney General herself disagrees with the
MSPB’s ruling or, ultimately, this Court’s ruling. If the MSPB or this Court
overturns the removal action, DOJ must comply, regardless of whether an internal
process reached a different conclusion as to the removal. For example, the FBI
provides an internal disciplinary appeals process for FBI employees (both
preference eligible veterans and non-veterans), 5 but the FBI must comply with an
MSPB order for appeals brought under section 7513(d), even if the MSPB’s
decision conflicts with the findings of FBI’s internal process. In affording FBI
preference-eligible veterans MSPB appeal rights, Congress clearly intended for
their cases to be handled outside of the Justice Department, regardless of whatever
internal processes the FBI puts in place.
Precluding an affirmative defense of whistleblower retaliation in an MSPB
action properly brought under section 7513(d) and requiring preference eligible
5

See U.S. Dep’t of Justice, Office of the Inspector General, Evaluation and
Inspections Divisions, Review of the Federal Bureau of Investigation’s
Disciplinary System, Rep. No. 1-2009-02, (May 2009), available at
https://oig.justice.gov/reports/FBI/e0902/final.pdf.
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veterans to take whistleblower retaliation affirmative defenses through OARM
would create a perverse dual system wherein the Justice Department is serving as
the defendant in an MSPB challenge to an FBI personnel action and the adjudicator
in a simultaneous OARM challenge that the exact same FBI personnel action
constituted whistleblower retaliation. An inefficient, unjust dual system cannot
comport with Congress’ intent to give preference eligible veterans at the FBI
MSPB appeal rights under 7513(d).
CONCLUSION
For the reasons set forth above, Petitioner LtCol John C. Parkinson
respectfully requests that this Court affirm the panel decision and allow the
affirmative defense of whistleblower retaliation.
Respectfully submitted,
/s/ Kathleen M. McClellan
Kathleen M. McClellan
National Security and Human Rights Deputy Director
Whistleblower and Source Protection Program (WHISPeR)
ExposeFacts
910 17th Street NW Suite 800
Washington, D.C. 20006
Telephone: (301) 351-3582
Kathleen@exposefacts.org
Jesselyn A. Radack
National Security and Human Rights Director
Whistleblower and Source Protection Program (WHISPeR)
ExposeFacts
910 17th Street NW Suite 800
Washington, D.C. 20006
Telephone: (202) 369-1749
Jess@exposefacts.org
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United States Court of Appeals
for the Federal Circuit
Parkinson v DOJ, 2015-3066

CERTIFICATE OF SERVICE
I, Robyn Cocho, being duly sworn according to law and being over the age
of 18, upon my oath depose and say that:
Counsel Press was retained by WHISTLEBLOWER AND SOURCE PROTECTION
PROGRAM (WHISPER), attorneys for Petitioner to print this document. I am an
employee of Counsel Press.
On September 26, 2016 counsel has authorized me to electronically file the
foregoing PETITIONER’S SUPPLEMENTAL EN BANC BRIEF with the
Clerk of Court using the CM/ECF System, which will serve via e-mail notice of
such filing to all counsel registered as CM/ECF users, including any of the
following:
TARA K. HOGAN, ESQ.
DEPARTMENT OF JUSTICE
Commercial Litigation Branch, Civil Division
P.O. Box 480 - Ben Franklin Station
Washington, DC 20044
Tel.: 202-616-2228
melissa.m.devine@usdoj.gov
Counsel for Respondent
Paper copies will also be mailed to the above principal counsel on this date.
Also on this date, thirty paper copies will be filed with the Court via Express
Mail.
September 26, 2016

/s/ Robyn Cocho
Counsel Press

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME
LIMITATION, TYPEFACE REQUIREMENTS AND TYPE STYLE
REQUIREMENTS
1. This brief complies with the type-volume limitation of Federal Rule of
Appellate Procedure 32(a)(7)(B).
X

The brief contains 5,617 words, excluding the parts of the brief
exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii),or
The brief uses a monospaced typeface and contains
lines of
text, excluding the parts of the brief exempted by Federal Rule of
Appellate Procedure 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of
Appellate Procedure 32(a)(6).
X

The brief has been prepared in a proportionally spaced typeface using
MS Word 2013 in a 14 point Times New Roman font or
The brief has been prepared in a monospaced typeface using
in a ___ characters per inch_________ font.
/s/ Kathleen M. McClellan
Kathleen M. McClellan
Counsel for Petitioner

September 26, 2016
Date

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