Parkinson v. Department of Justice
2017 U.S. App. LEXIS 21200
| Fed. Cir. | 2017

Background

  • Lt. Col. John C. Parkinson, a preference‑eligible FBI Special Agent, was removed for lack of candor, obstruction, fraud/theft, and unprofessional conduct and appealed to the Merit Systems Protection Board (MSPB).
  • Parkinson asserted whistleblower reprisal as an affirmative defense to his removal; the MSPB dismissed that defense based on statutory exclusions for the FBI.
  • A three‑judge panel of this court reversed in part, holding the Board erred by precluding the whistleblower reprisal affirmative defense under 5 U.S.C. § 7701(c)(2)(C).
  • The en banc Federal Circuit reviewed whether preference‑eligible FBI employees may raise whistleblower‑reprisal defenses before the MSPB.
  • The court held 5 U.S.C. § 2303 creates a separate whistleblower enforcement scheme for all FBI employees (administratively enforced by DOJ offices and the Attorney General) and thus excludes MSPB review of FBI reprisal claims under § 7701(c)(2)(C).
  • The en banc court vacated the panel’s holding that MSPB could hear the affirmative defense, reinstated the panel on other issues, and remanded for penalty assessment.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether preference‑eligible FBI employees can raise whistleblower‑reprisal as an affirmative defense before the MSPB under 5 U.S.C. § 7701(c)(2)(C) Parkinson: § 7701(c)(2)(C) authorizes reversal when an agency action is “not in accordance with law,” so a violation of § 2303 (FBI whistleblower statute) is a defense to removal DOJ: Congress excluded the FBI from § 2302 protections and created § 2303 as a separate enforcement regime; therefore MSPB lacks jurisdiction to adjudicate FBI reprisal claims Held: MSPB lacks jurisdiction; § 2303 requires FBI reprisal claims be processed under DOJ/AG procedures, not before the MSPB
Whether § 2303 provides an exclusive administrative enforcement scheme for FBI reprisals and preempts MSPB/ judicial review Parkinson: § 2303 protects FBI employees but does not explicitly strip preference‑eligible employees of their MSPB appeal rights or affirmative defenses DOJ: § 2303, Congress’s exclusion of the FBI from § 2302, and delegation to the President/AG indicate Congress intended internal DOJ enforcement, not MSPB review Held: § 2303 establishes a separate scheme within DOJ; Congress did not provide Board or judicial review for FBI reprisal claims
Whether reading § 7701(c)(2)(C) to permit MSPB review would render § 7701(c)(2)(B) superfluous Parkinson: § 7701(c)(2)(C) is a broad “not in accordance with law” provision; it should cover § 2303 violations as well DOJ: Allowing § 7701(c)(2)(C) to cover § 2303 would swallow the specific whistleblower provision § 7701(c)(2)(B) and conflict with statutory structure Held: Court applies general/specific canon—permitting § 7701(c)(2)(C) to reach § 2303 would make specific provisions superfluous; courts decline that reading
Whether statutory amendments and subsequent congressional consideration altered the remedial scheme or created MSPB/judicial review for FBI reprisal claims Parkinson: Post‑CSRA legislative fixes and veteran protections support MSPB review for preference‑eligible employees DOJ: Congress considered but did not adopt measures providing MSPB/judicial review for FBI reprisals; 2016 amendment expanded disclosure recipients but did not add Board/judicial review Held: Congressional action did not create Board or judicial review; any change must come from Congress

Key Cases Cited

  • Lindahl v. Office of Pers. Mgmt., 470 U.S. 768 (1985) (CSRA overhauled civil service and created MSPB)
  • Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322 (Fed. Cir. 2006) (MSPB adjudicatory role over adverse personnel actions)
  • Elgin v. Dep’t of Treasury, 567 U.S. 1 (2012) (limits on Board jurisdiction and reviewability of certain personnel actions)
  • RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639 (2012) (general/specific canon; avoid rendering specific provision superfluous)
  • Kleeckner v. Solis (Kloeckner v. Solis), 568 U.S. 41 (2012) (complexity of mixed‑case appeals to MSPB)
  • Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (due‑process right to opportunity to respond before deprivation of property interest)
  • Parkinson v. Dep’t of Justice (panel), 815 F.3d 757 (Fed. Cir. 2016) (panel decision that MSPB erred in precluding affirmative defense)
  • Ad Hoc Shrimp Trade Action Comm. v. United States, 802 F.3d 1339 (Fed. Cir. 2015) (retroactivity presumption in statutory changes)
  • Killeen v. Office of Pers. Mgmt., 558 F.3d 1318 (Fed. Cir. 2009) (de novo review of statutory interpretation)
  • Bennett v. Merit Sys. Prot. Bd., 635 F.3d 1215 (Fed. Cir. 2011) (CSRA amendments extending appeal rights)
  • Archuleta v. Hopper, 786 F.3d 1340 (Fed. Cir. 2015) (MSPB may consider whistleblowing as a mitigating factor in penalties)
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