News from the Federal Circuit: On October 26, 2017, the U.S. Court of Appeals for the Federal Circuit issued its en banc decision rehearing in Parkinson v. Dept. of Justice, No. 2015-3066. In a split decision, the Court rejected an FBI employee's ability to raise a whistleblower reprisal affirmative defense in his MSPB appeal.
The Parkinson case was previously analyzed in this blog. Writing for the majority, Circuit Judge Hughes held that FBI preference eligible employees who have MSPB appeal rights cannot raise a claim of whistleblower reprisal as a "violation of law" under 5 U.S.C. § 7701(c)(2)(C), finding instead that any such whistleblower reprisal claims can solely be heard in the Department of Justice's own whistleblower reprisal complaints system under 5 U.S.C. § 2303. Notably, this complaints system has received criticism over years, as discussed in this blog, in particular as to delays in complaint processing.
Circuit Judges Plager and Lynn both wrote dissents, each joining with the other's dissent. Judge Plager characterized government personnel law "a structure riddled with inconsistences and puzzling provisions," stating that "parsing the variety of statutes [...] is akin to predicting divine will by studying animal entrails, as was done by the Etruscans and Romans." Judge Plager criticized the system of having the Department of Justice hear claims of whistleblower reprisal against itself as "an offense to basic principles of due process and governmental authority toward people whose only sin may be that they have chosen to work for the Government." Judge Lynn criticized the majority's opinion as relying on an inference to impose a reading inconsistent with the facial text of the statute. Judge Lynn also opined that separating out FBI employees' whistleblower reprisal complaints will leave the MSPB with a skewed view of the case, omitting probative evidence showing that unlawful retaliatory animus motivated the appealed adverse action.