Parkinson v. Department of Justice , 815 F.3d 757 ( 2016 )

United States Court of Appeals
for the Federal Circuit
______________________
JOHN C. PARKINSON,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2015-3066
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-13-0032-I-2.
______________________
Decided: February 29, 2016
______________________
KATHLEEN M. MCCLELLAN, Government Accountabil-
ity Project, Washington, DC, argued for petitioner. Also
represented by JESSELYN A. RADACK.
MELISSA M. DEVINE, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent. Also represented
by ELIZABETH M. HOSFORD, ROBERT E. KIRSCHMAN, JR.,
BENJAMIN C. MIZER.
______________________
Before TARANTO, PLAGER, and LINN, Circuit Judges.
2 PARKINSON v. DOJ
Opinion for the court filed by Circuit Judge LINN.
Opinion dissenting-in-part filed by Circuit Judge
TARANTO.
LINN, Circuit Judge.
Lt. Col. John C. Parkinson (“Parkinson”), a preference
eligible veteran, appeals from a final decision of the Merit
Systems Protection Board (“Board” or “MSPB”) sustaining
his removal as a Special Agent at the Federal Bureau of
Investigation (“FBI”) for lack of candor under oath in
violation of FBI Offense Code 2.6, and obstruction of
process of the Office of Professional Responsibility
(“OPR”) in violation of FBI Offense Code 2.11. Parkinson
v. Dep’t of Justice, No. SF-0752-13-0032-I-2 (M.S.P.B. Oct.
24, 2013). The Board assumed jurisdiction under 5 U.S.C.
§§ 7513(d), 7511(b)(8) and 7701, and we have jurisdiction
on appeal from the Board’s final decision under 5 U.S.C.
§ 7703.
We sustain the obstruction charge, and the Board’s
dismissal of Parkinson’s affirmative defense of violations
of the Uniformed Services Employment and Reemploy-
ment Rights Act of 1994 (“USERRA”). Because the lack of
candor charge is unsupported by substantial evidence,
and because the Board improperly precluded Parkinson
from raising an affirmative defense of whistleblower
retaliation, we reverse-in-part and vacate-in-part the
Board’s decision and remand for consideration of Parkin-
son’s whistleblower defense and, if necessary, the appro-
priate penalty.
PARKINSON v. DOJ 3
I. BACKGROUND
A. Parkinson and Facility Build-Out 1
Parkinson served as a special agent with the Sacra-
mento field office of the FBI. Beginning in 2006, Parkin-
son served as the leader of a special operations group
(“group” or “SOG”), and was tasked with relocating a
previously compromised undercover facility.
In 2006, the FBI leased a facility from James Rodda
(“Rodda”), who agreed to contribute $70,000 to be used for
“construction, construction documents, permits and fees”
(“tenant improvement funds”). Parkinson negotiated the
terms of the lease on behalf of the FBI, and managed the
tenant improvement funds.
In February of 2008, partway through the facility
build-out, Parkinson met with Assistant Special Agent in
Charge Gregory Cox (“Cox”), and made whistleblower-
eligible disclosures, implicating two pilots involved with
the group in misconduct. In August 2008, Cox and Par-
kinson’s immediate supervisor, Supervisory Special Agent
Lucero (“Lucero”), issued Parkinson a low performance
rating, removed him as group leader, and thereafter
reassigned him to another field office.
Believing these acts to be retaliation for his February
2008 disclosure, Parkinson sent a letter to Senator
Charles Grassley, who forwarded Parkinson’s whistle-
blower reprisal allegations to the Department of Justice’s
Office of the Investigator General (“OIG”) for investiga-
1 The detailed factual background herein is based
on reports by the Office of the Inspector General (“OIG”)
and the Office of Professional Responsibility (“OPR”), the
Board’s opinion, and the testimony of record. Except
where indicated, these facts are not in dispute.
4 PARKINSON v. DOJ
tion. OIG, in turn, opened a whistleblower reprisal inves-
tigation.
B. OIG Investigation of Parkinson
In October 2008, Special Agent Robert Klimt (“Klimt”)
replaced Parkinson as group leader, and took over the
management of the off-site build-out. The OPR report
describes Klimt’s testimony with respect to the state of
the facility build-out as Klimt found it: “the build-out had
not been completed, there were no records concerning the
build-out, there was no inventory for tools and equipment,
and no building plans or permits.”
In December 2008, Klimt requested from Rodda all
receipts, invoices, and information relating to the tenant
improvement funds used during the facility build-out.
Rodda explained that the $70,000 in tenant improvement
funds had been spent, and that Parkinson had requested,
received, and spent an additional $7,000. Rodda indicat-
ed that he would look for the requested receipts, but failed
to provide them after repeated FBI requests over several
months.
On August 6, 2009, Cox and the Sacramento Office of
the FBI submitted a referral to investigate possible mis-
use of the tenant improvement funds. The request was
sent to the OIG, which began a misuse investigation
shortly thereafter.
The OIG investigation included consideration of paper
documents, interviews with Rodda, his office manager
Barbara Rawls (“Rawls”), his bookkeeper Maureen Mas-
sara, each of Parkinson’s supervisors in Sacramento, and
multiple interviews with Parkinson. Parkinson testified
that until the Spring of 2010, he believed the interviews
to be in connection with Parkinson’s whistleblower re-
prisal complaint against the FBI leadership in Sacramen-
to.
PARKINSON v. DOJ 5
In November 2009, the OIG interviewed Rodda, who
provided a Vendor Balance Detail report, listing all the
tenant improvement expenses and hired vendors, and
subsequently provided the OIG with all receipts and
invoices to support the listed expenditures. The report
indicated that Parkinson had spent $78,789.48 for tenant
improvements. When the OIG asked Rodda why he had
not provided the report and receipts to the FBI earlier, he
first responded that the FBI agents “were being snoopy,”
but later stated that Parkinson “had told” him “not to
provide them as the OIG would be coming and asking for
them in the near future.” J.A. 175. The characterization
and import of Parkinson’s communication to Rodda to
withhold the receipts from the FBI is in dispute, and is
described infra in connection to the lack of candor deter-
mination.
In April 2010, Rodda, Rawls, and Parkinson met to
come to a “mutually agreed set of facts” with regard to a
check written directly to Parkinson on July 12, 2007 for
$1,215.67. J.A. 14. Parkinson took notes during the
meeting, gave them to Rawls to type, and had Rodda sign
the resulting statement. The statement indicated that
the check was made out to Parkinson to pay for a subcon-
tractor who would only accept payment in cash. Parkin-
son testified that “the document was created in response
to the rampant rumors that were going through the
Sacramento Division about possible misuse of funds [by
Parkinson],” J.A. 759, and that he was trying to “defend
[him]self against those accusations.” J.A. 760. The state-
ment explains: “I authorized this check to cover the cost of
installing interior doors to the building. Upon completion
of the door installation, the contractor who performed the
work indicated that he required cash payment . . . . My
bookkeeper was out of the office that day and, in light of
my staff shortage, Mr. Parkinson took the check to my
bank to acquire the cash to pay the contractor.” J.A. 171–
72. Rodda confirmed in a later interview that the infor-
6 PARKINSON v. DOJ
mation in the statement appeared to be correct, but that
he could not verify the specific details. The OIG report
noted that on June 17, 2010, two months after the meet-
ing took place, neither Rodda nor Rawls could recall what
the check was for. The Board determined that as of April
2010, Parkinson “anticipated that OIG would be investi-
gating his handling of the build-out.” J.A. 15.
Throughout 2009, and until May 2010, Parkinson was
interviewed repeatedly by OIG officials. In Spring 2010,
Rodda told Parkinson that he believed the OIG was
targeting Parkinson, and not just investigating Parkin-
son’s whistleblower complaint. In a May 2010 interview,
OIG confirmed to Parkinson that he was indeed the target
of its investigation concerning the tenant improvement
funds.
In the course of the interviews, Parkinson made two
groups of statements that are particularly relevant to the
instant case. First, the OIG investigator, David Loftus,
asked, “what were considered tenant improvement items
that [Rodda,] the owner of the [group] off-site was to pay
for? . . . . What was that supposed to be for, the improve-
ments?” and Parkinson answered, “Let me be very clear
on this point. Nothing was done with any of the tenant
improvement funds that was not approved by [Rodda].”
J.A. 635.
Second, Parkinson was asked several times about his
communication to Rodda about his desire that Rodda
provide the receipts to the OIG and withhold them from
the FBI. The relevant colloquies are reproduced below:
Q: Did you instruct [Rodda] not to provide [the
FBI] with receipts?
A: I instructed [Rodda] to provide those to the Of-
fice of the Inspector General.
...
PARKINSON v. DOJ 7
Q: [D]id you tell [Rodda] not to provide receipts to
the FBI? It’s a simple yes or no.
A: I asked him not to do that.
Q: Okay. So you told him not to provide receipts to
us, I mean to the FBI?
A: I didn’t tell him. I asked him not to.
Q: You asked him not to? And what was your pur-
pose for that?
A: Because my situation was having invoked the
protections of the Whistleblower Protection
Act . . . [a]nd I necessarily wanted OIG to be the
fair arbiter of that.
...
A: No, no, I don’t feel like I have the authority to
tell anyone anything with regard to this.
Q: Well, you did.
A: No, I asked [Rodda] to provide the information
to the OIG rather than FBI management.
...
A: I did not instruct [Rodda] to refuse to do it, in
terms of providing it to the FBI. I advised him
that those were his private business documents.
...
Q: . . . How are those records his private records
that he is not to share with FBI, who has entered
into an agreement with him? If he’s not paying
that money, if he has paid nothing, FBI could pull
out of the lease. They have every right to see it. I
don’t know why you’re classifying this as his pri-
vate records?
8 PARKINSON v. DOJ
A: I can’t agree with you on this point because, as
a private businessman, a private person, issuing
funds that are his personal funds to improve his
building, which he owns [in] fee simple, that is
solely his business.
J.A. 709–713.
C. Procedural History and Parkinson’s Challenges
The OIG sent the FBI its report of factual findings,
and the OPR thereafter issued its own report, and pro-
posed Parkinson’s dismissal. The OPR report concluded
that a preponderance of the evidence substantiated four
offenses: 1) theft under FBI Offense Code 4.5 for removal
of furniture from the offsite location2; 2) obstruction of the
OPR process under FBI Offense Code 2.11 for creating the
April 2010 “mutual recollection” document for Rodda’s
signature; 3) unprofessional conduct on duty under FBI
Offense Code 5.22 for (a) instructing Rodda and Rawls not
to provide the receipts to the FBI, (b) signing a false
purchase agreement for the removal of furniture from the
off-site, (c) spending tenant improvement funds for non-
construction related expenses, (d) using cash to pay a
laborer; and 4) lack of candor under FBI Offense Code 2.6
for statements made during the OIG investigation, repro-
duced supra at 6–8, concerning: (a) distinguishing be-
tween advising and telling Rodda and Rawls not to
provide the FBI with the receipts; (b) asserting that
Rodda approved all statements—without explaining that
2 Part of the tenant improvement funds were used
to purchase furniture, which Parkinson removed to an-
other of Rodda’s warehouses to secure from access by
persons who were the subject of his original whistleblower
disclosure. Because the Board did not sustain this
charge, see infra, we need not and do not further address
it.
PARKINSON v. DOJ 9
Rodda ratified the statements only afterwards; (c) assert-
ing that the statement signed by Rodda regarding the
check made out to Parkinson was a “mutual recollection”
while neither Rawls nor Rodda could remember the
purpose of the check two months later; and (d) statements
made about furniture removed from the SOG site.
The OPR thereafter proposed to dismiss Parkinson for
the theft (FBI Offense Code 4.5), unprofessional conduct
while on duty (FBI Offense Code 5.22), and lack of candor
(FBI Offense Code 2.6) charges, but did not impose a
separate sanction for the obstruction of the OPR process
charge (FBI Offense Code 2.11). OPR considered the
Douglas factors, Parkinson’s prior history of misusing a
government credit card to make $2,500 in personal pur-
chases, and aggravating and mitigating circumstances for
each of the offenses, and concluded that dismissal was the
appropriate penalty. The FBI thereafter dismissed Par-
kinson pursuant to the OPR report, and Parkinson ap-
pealed to the Board.
The Board affirmed the AJ’s dismissal of Parkinson’s
whistleblower and USERRA affirmative defenses, relying
on its prior decision in Van Lancker v. Department of
Justice, 119 M.S.P.R. 514 (2013) that FBI agents were 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 Board did not sustain the theft charge because
Parkinson did not have the specific intent required, and
did not sustain the unprofessional conduct charge because
Parkinson was not on duty during the alleged misconduct.
The Board did sustain the obstruction charge because
Parkinson “met with potential witnesses to ensure that
they had their stories straight, and he persuaded a key
witness to lock in his story by committing it to writing,”
with the result that the OIG could not obtain Rodda’s and
Rawls’s “untainted recollection of events, but rather their
10 PARKINSON v. DOJ
recollection as affected by the appellant’s efforts.” J.A. 14.
Though it concluded that “[t]he agency did not prove that
the written statement he drafted for the landlord was
incorrect or that he asked the landlord to lie about any-
thing,” J.A. 16, the Board decided that success in obstruc-
tion is not required to sustain the charge. The Board did
not sustain the lack of candor charge for two of the speci-
fications—holding that Parkinson did not lack candor in
stating that the April 2010 document was a “mutual
recollection[,]” and that Parkinson did not lack candor
with regard to the reasons for his moving of the furniture.
It did sustain the other two specifications—that Parkin-
son lacked candor by distinguishing between “telling” and
“asking” Rodda and Rawls not to provide the receipts to
the FBI, and that Parkinson lacked candor by failing to
explain that Rodda’s approval was in the form of ratifica-
tion, not pre-expense approval.
Despite its dismissal of several of the charges, the
Board sustained the OPR’s removal penalty. The Board
reconsidered the Douglas factors, noted the unique re-
sponsibilities of FBI agents, again considered the aggra-
vating circumstance of Parkinson’s prior disciplinary
record, the mitigating circumstance of Parkinson’s prior
record of military and FBI service, and that Parkinson
believed he was the victim of improper whistleblower
retaliation. The Board noted that many past removal
cases “involved more egregious acts of falsification than
the mischaracterizations or half-truths at issue here,” but
the Board nevertheless approved the removal penalty.
The full Board on review added some analysis, adopted
the initial decision, and came to the same conclusion. The
agency did not appeal the overruled charges. Parkinson
timely appealed the sustained charges.
PARKINSON v. DOJ 11
II. DISCUSSION
A. Standard of Review and Burdens of Proof
We may set aside the Board’s decision only where the
Board’s actions are “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(c). Credibility
determinations by the Board are “virtually unreviewable.”
Hambsch v. Dep’t of Treasury, 796 F.2d 430, 436 (Fed.
Cir. 1986). We review the Board’s statutory interpreta-
tions de novo. Weatherby v. Dep’t of Interior, 466 F.3d
1379, 1383 (Fed. Cir. 2006).
The Agency has the burden to show that removal of
an employee will “promote the efficiency of the service.”
Doe v. Dep’t of Justice, 565 F.3d 1375, 1379 (Fed. Cir.
2009) (citing 5 U.S.C. § 7513(a)).
B. Obstruction of the OPR Process
FBI Offense Code 2.11 prohibits “taking any action to
influence, intimidate, impede or otherwise obstruct the
OPR process.” The Board held that Parkinson obstructed
the OPR process in crafting the mutual recollection docu-
ment, categorizing Parkinson’s action as meeting with
“potential witnesses to ensure that they had their stories
straight,” and convincing “a key witness to lock in his
story by committing it to writing.” J.A. 14. The Board
explained that the obstruction was in preventing the OIG
from acquiring Rodda’s untainted recollection. There was
no evidence that Rodda’s testimony regarding the check
was altered by the meeting or the document.
We agree that the Board’s determination was sup-
ported by substantial evidence. There is no dispute that
Parkinson did in fact meet with Rodda and Rawls, that he
prepared the statement from his notes, and that he asked
Rawls to type it and Rodda to sign it. Indeed, Parkinson
12 PARKINSON v. DOJ
testified that his motivation for the meeting and for
creating the document was “to clarify the expenditure in
light of the false accusation Sacramento management was
levying against me that I had stole[n] $77,000 of Mr.
Rodda’s money.” J.A. 758. The document was thus
intended to improperly influence the investigation that he
believed would arise from the Sacramento office’s accusa-
tion.
Parkinson offers two unconvincing arguments against
this charge. First, that as of April 2010, he did not know
of the OPR investigation into his actions, and cites United
States v. Aguilar, 515 U.S. 593 (1995) and Arthur Ander-
sen LLP v. United States, 544 U.S. 696 (2005) for the
proposition that knowledge of a particular proceeding (not
an “ancillary proceeding”) is necessary to support a charge
of obstructing that proceeding. Aguilar was not interpret-
ing FBI Offense Code 2.11, and did not purport to set
overarching rules for all obstruction-based offenses,
particularly as the language of the criminal statute at-
issue in that case was critical to the decision, see 515 U.S.
at 598–600. Arthur Andersen also cannot stand for the
broad proposition Parkinson asserts; that case interpreted
a different criminal statute and required only that the
proceeding was “foreseeable” to support an obstruction
charge. 544 U.S. at 708.
Parkinson does not dispute that he knew about the
OIG investigation as of April 2010, and indeed argued to
the Board that he “was trying to facilitate—not obstruct—
the OIG’s investigation,” J.A. 958–59, by meeting with
Rodda and Rawls. Moreover, in his briefs to the Board,
Parkinson explained that in April 2010 “Mr. Parkinson
did believe the OIG would look into the build-out, in the
context of conducting an investigation into Mr. Parkin-
son’s whistleblower reprisal complaint.” J.A. 958–59.
Parkinson admitted that the reason for the April 2010
meeting—“to clarify the expenditure in light of the false
accusation Sacramento management was levying against
PARKINSON v. DOJ 13
me that I had stole[n] $77,000 of Mr. Rodda’s money,” J.A.
758—was directly related to the anticipated OPR proceed-
ing. This is sufficient to establish the nexus between the
obstruction and the proceeding; the OIG investigation
here was not “ancillary” to the OPR process.
Second, Parkinson argues that because Rodda later
testified that the April 2010 statement was true, he
cannot be said to have obstructed the OPR process. FBI
Offense Code 2.11 does not require a showing that the
action taken in fact influences the OPR process—it re-
quires only that actions are taken for proscribed purposes.
Parkinson’s admission that he wanted to “clarify the
expenditures in light of the false accusation Sacramento
management was levying against me” provides substan-
tial evidence to support the charge that he was trying to
improperly influence the OPR process, which is all that is
required. 3
C. Lack of Candor
Parkinson was charged with “lack[ing] candor under
oath in violation of FBI Offense Code 2.6 (Lack of Can-
3 Parkinson does not argue on appeal that the
Board applied a standard that lacked any requirement of
impropriety in the attempted influence. Such a require-
ment is implicit in the FBI Offense Code 2.11, given the
other words following “influence” and given that even
candid action aimed at persuasion would be covered by
“influence” if read without a requirement of impropriety.
Cf. Arthur Andersen, 544 U.S. at 703–04 (reciting legiti-
mate reasons for persuading others to withhold evidence,
thus stressing the importance of the “corruptly per-
suad[ing]” requirement for criminal obstruction under 18
U.S.C. § 1512). Clarity would be served if the Offense
Code language were modified to reflect the implicit re-
quirement.
14 PARKINSON v. DOJ
dor/Lying Under Oath).” FBI Offense Code 2.6 provides
for dismissal when an employee “[k]knowingly provid[es]
false information in a verbal or written statement made
under oath.” “False information” is further defined, inter
alia, as “false statements; misrepresentations; the failure
to be fully forthright; or the concealment or omission of a
material fact/information.”
In Ludlum v. Department of Justice, 278 F.3d 1280,
1284 (Fed. Cir. 2002), this court explained that lack of
candor and falsification are distinct charges. While
falsification “involves an affirmative misrepresentation
and requires intent to deceive,” id. at 1284 (citing Naekel
v. Dep’t of Transp., 782 F.2d 975, 977 (Fed. Cir. 1986)),
lack of candor “is a broader and more flexible concept
whose contours and elements depend upon the particular
context and conduct involved,” id. We explained that
“lack of candor is established by showing that the FBI
agent did not ‘respond fully and truthfully’ to the ques-
tions he was asked . . . . Although lack of candor neces-
sarily involves an element of deception, ‘intent to deceive’
is not a separate element of that offense—as it is for
‘falsification.’” Id. at 1284–85 (emphasis added).
In the context of FBI Offense Code 2.6, we understand
this “element of deception” to mean that the “failure to be
fully forthright” must be done “knowingly.” Indeed, this
was the distinction that ultimately led this court to affirm
the Board’s decision in Ludlum: “the gross disparity
between the three instances [of transporting unauthorized
persons in a Bureau vehicle] he first admitted and the
twelve to fourteen additional instances he admitted [to] a
month later indicates he must have known it was substan-
tially more than three,” id. at 1285–86 (emphasis added),
and Ludlum’s “later explanation for his earlier failure to
mention these additional instances—‘fear of causing me
further problems’—demonstrated that he was less than
candid in his [earlier] statement,” id. at 1286. Though
PARKINSON v. DOJ 15
lack of candor is distinct from falsification in that it does
not require a showing of an “intent to deceive,” id. at
1284–85, it nevertheless requires that information is
conveyed “knowing” that such information is incomplete.
1. Characterization of Statements to Rodda Not to
Provide Receipts to the FBI
Lack of candor, as relevant here, requires proof of two
elements: that the employee failed to be fully forthright,
and that the employee did so knowingly. Even assuming
that Parkinson failed to be fully forthright, there is no
substantial evidence that this failure was done “knowing-
ly.”
First, the Board found that Parkinson’s statement, “I
didn’t tell him, I asked him not to [provide the receipts]”
was “not accurate,” J.A. 20, because Parkinson later
stated that he “directed [Rodda] to provide the documents
to OIG rather than—or not the FBI,” and Rodda testified
that “[w]e got the impression that . . . we should give it to
the OIG and not the FBI.” J.A. 20–21. The distinction
between “asked” and “directed” was itself the only basis
for the Board’s inference that Parkinson “was trying to
minimize his culpability by suggesting he had done some-
thing of far less concern.” J.A. 22. According to the
Board, “[i]n drawing a distinction between telling and
asking, it appears that the appellant was trying to convey
the impression that he did not have much control or
influence over what the landlord did.” J.A. 21. The Board
concluded that “in the absence of any other plausible
explanation for his mischaracterization . . . the appellant
made it to deceive OIG about what had happened.” J.A.
22.
The distinction between the two characterizations is
not enough to allow an inference that the characterization
was done knowingly, because the statements can well be
read to convey the same message in different words: that
16 PARKINSON v. DOJ
Parkinson wanted the receipts to go to the OIG rather
than the FBI. Indeed, Rodda later explained his state-
ment that Parkinson “told” him not to provide the re-
ceipts, saying that “Parkinson asked him” not to provide
the receipts (quoted from the OIG report), “advised him to
not give the FBI any documentation” (quoted from the
OIG report), and “I think Parkinson didn’t trust the FBI
hierarchy, and he requested me to hold all documents
until [the] OIG asked for them.” J.A. 176 (Rodda being
quoted by OIG report, emphases added). Moreover, the
OIG report concluded that “Parkinson hindered the
Sacramento Division’s attempts to determine how the
SOG offsite tenant improvement funds were spent by
asking [Rodda] and those working for him not to provide
that information to the FBI.” J.A. 177. The interchange-
able use of words of direction and words of request by
Rodda, the OIG, and Parkinson shows that Parkinson’s
choice of words in explaining the communication provides
no foundation upon which to infer that he knowingly
lacked candor.
Moreover, Parkinson explained that the reason for his
insistence on the distinction was his understanding that
it was not his place to tell Rodda what to do with Rodda’s
own documents:
A: No, no, I don’t feel like I have the authority to
tell anyone anything with regard to this.
Q: Well, you did.
A: No, I asked [Rodda] to provide the information
to the OIG rather than FBI management.
...
A: I did not instruct [Rodda] to refuse to do it, in
terms of providing it to the FBI. I advised him
that those were his private business docu-
ments. . . .
PARKINSON v. DOJ 17
...
Q: . . . How are those records his private records
that he is not to share with FBI, who has entered
into an agreement with him? If he’s not paying
that money, if he has paid nothing, FBI could pull
out of the lease. They have every right to see it. I
don’t know why you’re classifying this as his pri-
vate records?
A: I can’t agree with you on this point because, as
a private businessman, a private person, issuing
funds that are his personal funds to improve his
building, which he owns [in] fee simple, that is
solely his business.”
J.A. 711–13. No evidence contradicts that this was Par-
kinson’s reason for insisting on the distinction. The
Board’s simple disbelief of Parkinson is not sufficient to
thus conclude that Parkinson knew he was not being
forthright and complete.
To be clear, the issue is not whether he, in fact, asked
or told Rodda to withhold the receipts. The issue is
whether the choice of words in these circumstances is
alone enough to meet the agency’s burden of showing that
Parkinson “knowingly” failed to be fully forthright. It is
not.
We thus hold that the lack of candor charge with re-
spect to the ask/tell distinction is unsupported by sub-
stantial evidence.
2. Pre-Approval/Ratification
The Board found that Parkinson exhibited a lack of
candor when he testified that: “Nothing was done with
any of the tenant improvement funds that was not ap-
proved by [Rodda].” See J.A. 635. The Board so held
because it concluded that the statement “provides an
appearance of pre-approval by the landlord of the expens-
18 PARKINSON v. DOJ
es,” and “for the appellant’s statement to OIG to have
been accurate and complete, he would have had to explain
the approvals were after-the-fact ratifications, not explicit
pre-expenditure authorizations to spend the funds in
particular ways.” With little further analysis, the Board
found that “in the absence of any other plausible explana-
tion for his misstatement . . . the appellant made it to
deceive OIG about the extent of the landlord’s involve-
ment in approving the expenditures.”
The problem with the Board’s analysis of Parkinson’s
state of mind is two-fold. First, the context of the ques-
tion was whether Rodda approved the expenses, not when
he did so. Parkinson’s use of “approved” in that context
instead of “ratified” is thus not enough to prove the neces-
sary element of a knowing failure to be forthright. Sec-
ond, “approved” is a generic way of saying “pre-approved
or ratified,” and Parkinson’s statement could thus be read
to be wholly accurate. Though this does not necessarily
preclude a finding of a lack of candor based on other
evidence of the speaker’s state of mind, the use of the
generic term does not alone provide substantial evidence
that Parkinson “knowingly” failed to be forthright.
We thus hold that the lack of candor charge with re-
spect to the pre-approval/ratification distinction is unsup-
ported by substantial evidence.
D. Availability of Judicial Review of Parkinson’s
USERRA and Whistleblower Claims
It is undisputed in this case that Parkinson has no
right to assert before the Board an individual right of
action under the Whistleblower Protection Act, 5 U.S.C.
§ 1201 et seq., or the Uniformed Services Employment and
Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C.
§ 4301 et seq. The issue here is whether a preference
eligible FBI agent with the right to appeal an adverse
personnel action before the Board is foreclosed from
asserting USERRA violations and whistleblower reprisal
PARKINSON v. DOJ 19
as affirmative defenses in such an appeal to the Board.
These are issues of first impression in this court.
There is no dispute in this case that the Board has ju-
risdiction to consider the propriety of Parkinson’s removal
by the FBI as a whole. The chain of statutes creating this
jurisdiction, and defining allowable affirmative defenses
is as follows. Title 5, section 7513(a) allows an “agency” to
“take an action covered by this subchapter [(titled “Re-
moval, Suspension for More than 14 Days, Reduction in
Grade or Pay, or Furlough for 30 Days or Less”)] against
an employee only for such cause as will promote the
efficiency of the service.” That same section creates a
judicial enforcement mechanism for this provision, by
providing that “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.” 5 U.S.C. § 7513(d).
Most FBI personnel are not afforded this judicial en-
forcement mechanism because § 7511(b) states: “This
subchapter does not apply to an employee . . . (8) whose
position is within the . . . Federal Bureau of Investiga-
tion.” However, the statute voids the exception for em-
ployees of the FBI for whom “subsection [5 U.S.C.
§ 7511(a)(1)(B)] of this section . . . is the basis for this
subchapter’s applicability.” 5 U.S.C. § 7511(b)(8). Sec-
tion 7511(a)(1)(B) defines an Employee as “a preference
eligible in the excepted service who has completed 1 year
of current continuous service in the same or similar
position[]—(i) in an Executive Agency.” 4 In other words,
preference eligible FBI employees against whom adverse
employment action has been taken may appeal such
action to the Board, though non-preference eligible FBI
employees do not have such a right.
4 It is undisputed that the FBI is “an Executive
Agency” for purposes of this subchapter.
20 PARKINSON v. DOJ
Title 5, U.S. Code, section 7701, the Board’s general
jurisdictional statute, provides that “[a]n employee, or
applicant for employment, may submit an appeal to the
Merit Systems Protection Board from any action which is
appealable to the Board under any law, rule, or regula-
tion.” The Board may sustain the agency decision: “Sub-
ject to paragraph (2) of this subsection . . . only if the
agency’s decision . . . (B) . . . is supported by a preponder-
ance of the evidence.” 5 U.S.C. § 7701(c)(1). This section
forms the basis of Parkinson’s challenges to the factual
bases of the lack of candor and obstruction of the OPR
process charges above.
Paragraph (2) goes on to preclude the Board from sus-
taining agency decisions as follows:
(2) Notwithstanding [5 U.S.C. § 7701(c)] para-
graph (1), the agency’s decision may not be sus-
tained under subsection (b) of this section if the
employee or applicant for employment –
...
(B) shows that the decision was based on
any prohibited personnel practice de-
scribed in section 2302(b) of this title; or
(C) shows that the decision was not in ac-
cordance with law.
5 U.S.C. § 7701(c)(2). 5 The Government and Parkinson
agree that this section generally allows petitioners to
5 Section § 7701(c)(2)(B) uses the phrase “prohibited
personnel practice described in section 2302(b),” and
section 2302(b) uses the phrase “personnel action.” Sec-
tion 2302(a)(1) defines “prohibited personnel practice” as
“any action described in subsection (b).” Neither Parkin-
son nor the Government distinguishes between the
phrases “personnel practice” and “personnel action.”
PARKINSON v. DOJ 21
assert certain affirmative defenses to contest agency
personnel decisions. The parties disagree whether Par-
kinson, as an FBI agent, can assert the Whistleblower
Protection Act and USERRA rights as affirmative defens-
es under §§ 7701(c)(2)(B) or (C).
The relevant whistleblower protections are codified,
inter alia, in 5 U.S.C. § 2302(b) (emphasis added): “Any
employee who has authority to take, direct others to take,
recommend, or approve any personnel action, shall not,
with respect to such authority . . . (8) take or fail to take,
or threaten to take or fail to take, personnel action with
respect to any employee or applicant for employment
because of (A) any disclosure of information by an em-
ployee or applicant which the employee or applicant
reasonably believes evidences (i) any violation of any law,
rule, or regulation . . . [or] (11)(A) knowingly take, rec-
ommend, or approve any personnel action if the taking of
such action would violate a veterans’ preference require-
ment.” Section 2302(a)(2)(A) (emphasis added) defines a
“personnel action” as, inter alia, “(iii) an action under
chapter 75 of this title or other disciplinary or corrective
action [including removal]. . . with respect to an employee
in, or applicant for, a covered position in an agency.” In
turn, section 2302(a)(2)(C) (emphasis added) defines
“agency” as “an Executive Agency and the Government
Publishing Office, but does not include . . . the Federal
Bureau of Investigation.”
A divided Board here dismissed Parkinson’s whistle-
blower reprisal and USERRA affirmative defenses, rely-
ing on its previous decision in Van Lancker v. Department
of Justice, 119 M.S.P.R. 514 (2013). In Van Lancker,
another divided Board dismissed a preference eligible FBI
agent’s affirmative defense of whistleblower retaliation,
holding that “The FBI is specifically excluded from cover-
age under 5 U.S.C. § 2302, and therefore the reference to
2302(b) in section 7701(c) is inapplicable to FBI employ-
ees.” 119 M.S.P.R. at 517. The Board reasoned that
22 PARKINSON v. DOJ
Congress could have carved out an exception to the prohi-
bition in § 2302 for preference eligible employees, or
“refrain[ed] from referencing section 2302(b) exclusively
in section 7701(c)(2)(B)” in defining a prohibited personnel
practice. Id. at 517–18. Finally, the Board distinguished
cases where it had allowed affirmative defenses of whis-
tleblower reprisal by preference eligible Postal Service
employees—though those employees too are generally
excluded from coverage under § 2302. It distinguished
Postal Service and FBI employees because of the likeli-
hood of sensitive information being revealed with respect
to FBI whistleblowers and Congressional intent that FBI
whistleblower claims be resolved internally, as manifest-
ed by Congress’s creation of § 2303 to provide a separate
internal enforcement mechanism for whistleblower claims
by FBI agents. See id. at 518–19 (discussing Mack v.
U.S.P.S., 48 M.S.P.R. 617 (1991) and Butler v. U.S.P.S.,
10 M.S.P.R. 45 (1982)). The Board here added that
§ 7701(c)(2)(C) could not allow Parkinson’s whistleblower
affirmative defense because, though whistleblower retali-
ation against FBI employees generally is not in accord-
ance with the law under § 2303, the Board has no review
authority over violations of that section in whatever
posture presented.
Vice Chairman Wagner filed dissenting opinions in
both Van Lancker and in this case. In Van Lancker, Vice
Chairman Wagner argued that “the existence of section
2302 does not justify disregarding the holdings in Butler
and Mack,” since both the Postal Service and the FBI are
excluded from individual causes of action under § 2302
and both have internal procedures for enforcement of
whistleblower retaliation claims. Van Lancker,
119 M.S.P.R. at 524–25. Vice Chairman Wagner reiterat-
ed that position in her dissent in this case.
Parkinson argues that: 1) Van Lancker was wrongly
decided because the exclusion of the FBI as an “agency” in
§ 2302(a) only applies to claims made under § 2302 and
PARKINSON v. DOJ 23
not to affirmative defenses where the Board otherwise has
jurisdiction over the personnel action; 2) there is no
principled way to distinguish Parkinson’s case from the
preference eligible postal workers in Mack and Butler;
and 3) the “not in accordance with law” provision in
§ 7701(c)(2)(C) may use the prohibition against whistle-
blower retaliation at the FBI found in § 2303 and against
USERRA violations at the FBI found in 38 U.S.C. § 4325as affirmative defenses.
1. Whistleblower Retaliation Defense
With regard to his whistleblower defense, we agree
with Parkinson. As a preference eligible FBI agent,
Parkinson was an “employee” under § 7511, with the right
to appeal his removal to the Board under 5 U.S.C.
§§ 7513(d) and 7701. Section 7701(c)(2)(C) unambiguous-
ly provides, inter alia, that “the agency’s decision may not
be sustained under subsection (b) of this section if the
employee . . . (C) shows that the decision was not in
accordance with law.”
Section 2303 unambiguously prohibits whistleblower
reprisal at the FBI:
Any employee of the Federal Bureau of Investiga-
tion . . . shall not . . . take or fail to take any per-
sonnel action with respect to any employee of the
Bureau as 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.
5 U.S.C. § 2303(a). The statute goes on to define “person-
nel action” as “any action described in clauses (i) through
(x) of section 2302(a)(2)(A) of this title with respect to an
employee in, or applicant for, a position in the Bureau.”
Id. Section 2302(a)(2)(A)(iii) covers adverse actions under
24 PARKINSON v. DOJ
chapter 75, such as the removal taken here against Par-
kinson. Thus, if Parkinson was removed in reprisal for
his whistleblowing disclosures, his removal would be “not
in accordance with law,” and the Board would be statuto-
rily prohibited from sustaining the agency’s decision to
remove Parkinson.
The only issue is whether the creation of an FBI-
specific enforcement mechanism for whistleblower retalia-
tion in § 2303 preempts the availability of an affirmative
defense of whistleblower retaliation by a preference
eligible FBI employee before the MSPB.
The Government offers three arguments why it does.
First, the Government emphasizes that the statutory
language in § 7701(c)(2)(B) does not support a distinction
between individual causes of action and affirmative
defenses. In either case, the FBI is not an “agency” and is
thus incapable of taking “personnel action” under 5 U.S.C
§ 2302(a). Thus, the Government argues, Parkinson
cannot show that the FBI’s removal decision “was based
on any prohibited personnel practice described in section
2302(b)” for purposes of 5 U.S.C. § 7701(c)(2)(B), even as
an affirmative defense. The Government notes that the
Supreme Court has stated that Congress exempted the
FBI from “the requirements of Section 2302(b)(8)(A)
entirely,” Dep’t of Homeland Sec. v. MacLean, 135 S. Ct.
913, 923–24 (2015). Even assuming without deciding that
the reference in § 7701(c)(2)(B) to “prohibited personnel
practice described in section 2302(b)” necessarily excludes
Parkinson’s affirmative defenses, such a determination
does not undermine Parkinson’s argument under
§ 7701(c)(2)(C) that his removal was not in accordance
with the whistleblower law directly applicable to FBI
personnel, i.e., § 2303.
Second, the Government argues that § 7701(c)(2)(C),
as a general “catch-all” provision, cannot “evade
[§ 7701(c)(2)(C)’s] clear limitations to section 2302,”
PARKINSON v. DOJ 25
because, as a general rule, the “specific [statutory provi-
sion] governs the general [statutory provision], as ex-
plained in Morales v. Trans World Airlines, Inc., 504 U.S.
374, 384 (1992). Section 7701(c)(2)(B) and (C) do not
stand in a specific/general relation to one another with
respect to the FBI. If it is true, as the Government ar-
gues, that the FBI is incapable of taking a prohibited
personal action under § 2302(b), then § 7701(c)(2)(B) says
nothing about affirmative defenses available to FBI
employees, and there can be no conflict between the
“specific” provision of § 7701(c)(2)(B) and the “general”
provision of § 7701(c)(2)(C). The FBI’s exclusion from the
definition of an “agency” in § 2302(a)(2)(A) does not mean
that an FBI decision based on the prohibited personnel
practices described in § 2302(b) would thus be in accord-
ance with law. To the contrary, as evidenced by § 2303,
the prohibited personnel practices at issue here are pro-
hibited by law at the FBI. In other words, although the
FBI is excluded from the scope of § 7701(c)(2)(B), that
subsection does not prohibit the applicability of
§ 7701(c)(2)(C) to the FBI.
Finally, the Government argues that even if
§ 7701(c)(2)(C) could be used as a basis for Parkinson’s
affirmative defense, § 2303 cannot form the predicate
violation of law because that section gives the Attorney
General the power to promulgate regulations to prevent
whistleblower reprisals, and gives the President the
power to enforce § 2303, and these powers are to be exer-
cised in a way that did not provide for judicial review with
the Board and this court. In other words, the Govern-
ment argues that the Department of Justice regulations
promulgated under § 2303(b)—creating a non-judicial
resolution mechanism of whistleblower retaliation claims
at the FBI—preempt the right of preference eligible FBI
employees from asserting whistleblower retaliation as an
affirmative defense under § 7701(c)(2)(C). The Govern-
ment also argues that whistleblower reprisal claims by
26 PARKINSON v. DOJ
employees in the intelligence community raise serious
security concerns, as the Board held in Van Lancker, and
allowing such defenses at the Board and this court vio-
lates the Congressional intent in § 2303 to resolve those
claims within the Department of Justice. This is roughly
the argument accepted by the dissent-in-part, “that a
sufficiently specific remedial regime can displace an
otherwise-available general remedy whose application
would impair policies evident in the specific remedial
provisions.” Dissent-in-part at 3 (citing cases).
This argument is ultimately unconvincing because it
fails to appreciate the distinct rights Congress provided to
preference eligible and non-preference eligible FBI em-
ployees. As discussed supra, most FBI employees have no
right of appeal to the Board under 5 U.S.C. §§ 7701(a),
7513(a), and 7513(d) by virtue of the exclusion of FBI
employees from the definition of “employees” under 5
U.S.C. § 7511(b)(8). As such, 28 C.F.R. § 27 provides an
important, and potentially exclusive, procedure for most
FBI employees to resolve whistleblower retaliation-
motivated agency actions. Preference eligible FBI em-
ployees, however, do have a right of review over certain
adverse agency action to the Board, and such employees
are explicitly protected from action that is taken “not in
accordance with law.” Neither the Government nor the
dissent explain how the existence of internal FBI proce-
dures for resolving whistleblower retaliation undermines
this statutory right. Section 2303 gives to the Attorney
General the responsibility of prescribing regulations “to
ensure that such personnel action shall not be taken
against an employee of the Bureau as a reprisal for any
disclosure of information described in subsection (a) of
this section,” and gives to the President the responsibility
to “provide for the enforcement of this section in a manner
consistent with applicable provisions of sections 1214 and
1221 of this title.” 5 U.S.C. § 2303. Although the promul-
gated regulations do not provide for judicial review, see 28
PARKINSON v. DOJ 27
C.F.R. §§ 27.1–27.5, nothing in the statute prohibits
judicial review of whistleblower retaliation claims when
presented as affirmative defenses under a separate stat-
ute providing for such review in cases affecting preference
eligible FBI employees.
This is not a situation where the statutory scheme ev-
idences a clear Congressional intent to exclude whistle-
blower affirmative defenses from judicial review. See e.g.,
United States v. Fausto, 484 U.S. 439, 452 (1988) (consid-
ering the effect of the Civil Service Reform Act of 1978,
including 5 U.S.C. §§ 7701, 7511 and 7513, on the appeal
rights of non-preference eligible employees in the except-
ed service). To the extent that the FBI’s exclusion from
§ 2302(b) evidences a Congressional intent to exclude the
actions of at least some FBI employees from judicial
review, cf. MacLean, 135 S. Ct. at 923–24 (noting in dicta
that Congress exempted the FBI from “the requirements
of Section 2302(b)(8)(A) entirely”), 6 such a determination
is more than balanced by the Congressional intent
evinced by the explicit statutory right given to preference
eligible FBI agents to have adverse employment actions
judicially reviewed and to allow affirmative defenses
based on violations of law presented during such a review.
6 MacLean concerned a Department of Homeland
Security employee’s eligibility to challenge his removal
under 5 U.S.C. § 2302(b)(8) for making disclosures of
sensitive information. Unlike the FBI, Homeland Securi-
ty is not one of the agencies listed in 5 U.S.C.
§ 2302(a)(2)(C)(ii)(I), and the issue was whether an excep-
tion withholding whistleblower protection for statements
prohibited by law extends to statements prohibited by
regulation. The availability of an affirmative defense to a
preference eligible FBI employee under 5 U.S.C.
§ 7701(c)(2)(C) or § 7701(c)(2)(B) was simply not at issue
in that case.
28 PARKINSON v. DOJ
Section 7701(c)(2)(C) does not exclude FBI employees, and
§ 2303 does not prohibit judicial review. In the absence of
a clearer Congressional mandate, and in light of Con-
gress’s solicitous treatment of preference eligible FBI
employees, we decline the Government’s invitation to read
§ 2303 to impliedly overrule the explicit statutory availa-
bility of affirmative defenses under § 7701(c)(2)(C).
The legislative history of the 1978 Act manifests an
intention that the appeal rights of preference eligible FBI
agents be grouped with other preference eligibles rather
than other FBI employees. Title 5, Sections 7701, 7511,
7513, 2302, and 2303 were all part of the Civil Service
Reform Act of 1978. That Act abolished the Civil Service
Commission, and assigned its adjudicative functions to
the Merit Systems Protection Board. S. Rep. 95-969, at 5
(1978), as reprinted in 1978 U.S.C.C.A.N. 2723, 2727. At
that time, preference eligible veterans, including prefer-
ence eligible FBI employees, already had the right to
appeal their removal to the Civil Service Commission
under Section 14 the Veterans’ Preference Act of 1944, 58
Stat. 390, as amended 61 Stat. 723 (“[A] preference eligi-
ble . . . shall have the right to appeal to the Civil Service
Commission from an adverse decision of the administra-
tive officer.”). Preference eligible FBI agents could exer-
cise this right just as well as preference eligible employees
of other agencies. See id. (granting appeal rights to
preference eligible employees “in any establishment,
agency, bureau, administration, project, or department”
without qualification on agency); Chastain v. Kelley, 510
F.2d 1232, 1236 (D.C. Cir. 1975) (discussing preference
eligible FBI agent’s rights under the Veterans Preference
Act). Cf. Carter v. United States, 407 F.2d 1238, 1242
& n.3 (D.C. Cir. 1968) (“Because of the exemption of the
FBI from the civil service laws, the Bureau is generally
free to discharge its employees for any reasons it chooses,”
but “like any other employer, the FBI is subject to the
provisions of § 9(c) of the Universal Military Training and
PARKINSON v. DOJ 29
Service Act by which Congress granted special rights and
protections to the returning veteran,” though that agent
could not appeal to the Civil Service Commission because
he was not preference eligible).
The focus of the 1978 Act was to expand the proce-
dural and substantive employment rights of non-
preference eligible members of the excepted service. H.R.
Rep. No. 101-328, at 3, as reprinted in 1990 U.S.C.C.A.N.
695, 697 (“The key difference between the protections
available to competitive service employees and preference
eligibles in the excepted service, on the one hand, and
excepted service employees who are not preference eligi-
bles, on the other, is the right to appeal an adverse action
to the Merit Systems Protection Board for independent
review. H.R. 3086 eliminates that difference.”). The 1978
Act was not intended to restrict the rights of preference
eligible employees at the FBI:
The bill limits the procedural protections for em-
ployees of . . . the Federal Bureau of Investigation
(FBI) . . . solely to preference eligibles, thereby
preserving the status quo. The committee pre-
served the status quo in relation to the FBI and
NSA because of their sensitive missions.
Id. at 699. See also id. at 697 (“An estimated 30 to 40
percent of the remaining 445,700 excepted service em-
ployees already have appeal rights because they are
veterans preference eligible.”). Although the Act did not
extend Board appeal rights for FBI employees, nothing in
the text or legislative history with respect to §§ 2302,
2303, 7511, 7513, or 7701 suggests that Congress intend-
ed to curtail rights already extant—such as those availa-
ble to preference eligible employees. Congress
maintained this right despite a clear recognition of the
security concerns of doing so. This is in contrast to em-
ployees of “some agencies, such as the Central Intelli-
gence Agency and the General Accounting Office, [where]
30 PARKINSON v. DOJ
even veterans do not have appeal rights.” Id. The FBI’s
exclusion from § 2302 and the creation of a separate
offensive enforcement mechanism for FBI whistleblowers
in § 2303 should thus not be read to undermine by impli-
cation rights already extant before 1978.
The dissent-in-part’s cited cases are not to the contra-
ry. For example, United States v. Bormes, 133 S.Ct. 12,
18 (2012) held that the Little Tucker Act is not available
as a waiver of sovereign immunity because the Fair
Credit Reporting Act (FCRA) “contains its own judicial
remedies” for its violation. The case further held that the
Little Tucker Act is available only where “no special
remedy has been provided,” and the FCRA created a
detailed remedial scheme with particular rights, that was
“plaintiff-specific,” and “precisely defined the appropriate
forum.” Id. However, that case says nothing about the
scope of proper adjudication where judicial review is
already clearly available (under § 7513 and § 7701). In
RadLAX Gateway Hotel, LLC. v. Amalgamated Bank, 132
S. Ct. 2065, 2071 (2012), the Supreme Court addressed
the interaction between two statutory provisions for
repayment of a creditor by a bankruptcy debtor: one
provision (clause (ii)) allowing a sale of a property and
repayment with the proceeds—but requiring the debtor to
allow a creditor “credit-bid”—and a second catch-all
provision (clause (iii)) allowing repayment with the “indu-
bitable equivalent” of the value of the creditor property.
The Supreme Court precluded a mechanism equivalent to
the first provision but without the “credit-bid” option
using the second provision because otherwise the general
provision would swallow up the specific one. This case too
cannot apply to the instant situation—the FBI’s exclusion
from § 2302(b) was not directed to the availability of an
affirmative defense for a preference eligible with inde-
pendent Board appeal rights, and the FBI is not excluded
in § 7701(c)(2)(B). As such, the allowance of the whistle-
blower defense to the FBI here under § 7701(c)(2)(C)
PARKINSON v. DOJ 31
would not swallow up the specific provision. The remain-
der of the cited cases are similarly inapposite.
Our decision is bolstered by consideration of
5 U.S.C. §§ 1214 and 1221. See 5 U.S.C. § 2303(c) (“The
President shall provide for the enforcement of this section
in a manner consistent with applicable provisions of
sections 1214 and 1221 of this title.”). Those sections
allow employees with “the right to appeal directly to the
Merit Systems Protection Board under any law, rule, or
regulation” to seek corrective action for prohibited per-
sonnel action first to the Board, whereas other employees
must first seek corrective action from Special Counsel.
See 5 U.S.C. §§ 1221(a), (b), and 1213(a)(3).
We therefore reverse the Board’s decision prohibiting
Parkinson from raising the affirmative defense of Whis-
tleblower retaliation under 5 U.S.C. § 2303.
2. USERRA Violation Affirmative Defense
Similarly, Parkinson argues that his removal would
be not in accord with law under § 7701(c)(2)(C) if it is
brought in violation of USERRA. In contrast to the
whistleblower retaliation defense, however, the USERRA
violation claims do manifest a clear Congressional will to
withhold all judicial review of USERRA violations for FBI
agents.
Parkinson does not explain the specific USERRA vio-
lation herein, and cites only 38 U.S.C. § 4315. That
section, titled “Reemployment By Certain Federal Agen-
cies” provides, inter alia, as follows:
(a) The head of each agency referred to in section
2302(a)(2)(C)(ii) of title 5 [including the FBI] shall
prescribe procedures for ensuring that the rights
under this chapter apply to the employees of such
agency.
32 PARKINSON v. DOJ
(b) In prescribing procedures under subsection (a),
the head of an agency referred to in that subsec-
tion shall ensure, to the maximum extent practi-
cable, that the procedures of the agency for
reemploying persons who serve in the uniformed
services provide for the reemployment of such
persons in the agency in a manner similar to the
manner of reemployment described in section
4313.
Section 4315 goes on to wholly exclude the FBI’s determi-
nation of reemployability under that section from judicial
review as follows:
(c) (1) The procedures prescribed under subsection
(a) shall designate an official at the agency who
shall determine whether or not the reemployment
of a person referred to in subsection (b) by the
agency is impossible or unreasonable.
(2) Upon making a determination that the
reemployment by the agency of a person referred
to in subsection (b) is impossible or unreasonable,
the official referred to in paragraph (1) shall noti-
fy the person and the Director of the Office of Per-
sonnel Management of such determination.
(3) A determination pursuant to this subsection
shall not be subject to judicial review.
(emphasis added). Unlike 5 U.S.C. § 2303(a), which sets
forth a procedure for the internal resolution of whistle-
blower rights, 38 U.S.C. § 4315 explicitly indicates that
the substantive determination of reemployability “shall
not be subject to judicial review.” Although such a prohi-
bition applies by its terms only for “a determination
pursuant to this subsection,” i.e., pursuant to internal
agency procedures, the Congressional intent to insulate
the substantive determination from judicial review would
be frustrated by allowance of judicial review under 5
PARKINSON v. DOJ 33
U.S.C. § 7701(c)(2). Cf. Dew v. United States, 192 F.3d
366, 371–72 (2d Cir. 1999) (quoting Block v. Cmty. Nutri-
tion Inst., 467 U.S. 340, 345 (1984)) (“‘Whether and to
what extent a particular statute [provides or] precludes
judicial review is determined not only from its express
language, but also from the structure of the statutory
scheme, its objectives, its legislative history, and the
nature of the administrative action involved.’”). We note
also that unlike the whistleblower act, which protects
both veteran and non-veteran employees, USERRA by its
terms applies only to veterans. See 38 U.S.C. § 4303(defining “service in the uniformed services”) and 38
U.S.C. §§ 4311–4312 (prohibiting certain acts against
those who “serve in the uniformed services”). As such, it
makes little sense to allow Parkinson—by virtue of his
having served in the military service—access to judicial
review over an affirmative defense grounded in a
USERRA violation, when claims by others who have
served are explicitly insulated from judicial review.
Congress’s coupling of a specific procedure for enforc-
ing USERRA reemployment violations at the FBI and
similar agencies, coupled with an affirmative prohibition
on judicial review of the substantive determination made
thereby, leads us to conclude that Congress intended to
exclude the substantive determination from judicial
review of any kind, including when presented in the
context of an affirmative defense under 5 U.S.C.
§ 7701(c)(2).
E. Remand
In light of our disposition reversing the lack of candor
determination, lifting the Board’s prohibition of Parkin-
son’s whistleblower retaliation defense, and sustaining
the obstruction charge and the Board’s prohibition of
Parkinson’s USERRA defense, we vacate the Board’s
affirmance of Parkinson’s removal and remand. On
remand, the only matters remaining for consideration are
34 PARKINSON v. DOJ
the obstruction charge, Parkinson’s whistleblower-
reprisal defense thereto and the appropriate penalty, if
any, after such consideration.
We note that the penalty determination section of the
FBI’s dismissal letter relating to the obstruction charge
states:
The investigation also established you violat-
ed FBI Offense Code 2.11 (OPR Matter – Obstruc-
tion). The standard penalty for this offense is a
ten-day suspension. Mitigating factors warrant a
three- to seven-day suspension. Aggravating fac-
tors warrant a fifteen-day suspension to dismis-
sal.
Your misconduct was repeated. You not only
had Person # 1 [Rodda, it seems] sign a document,
prepared by you, setting out the facts concerning a
check for $1,215.67 written directly to you, but al-
so contacted SA # 2, after the OIG investigation
had begun, and questioned her regarding her rec-
ollection of witnessing the paying of a laborer in
cash, prior to her interview. Based on the circum-
stances of this case, I would normally impose a 30-
day suspension for your 2.11 offense, aggravated
due to the multiple occurrences of attempting to
influence witness statements. However, since I
am dismissing you for your 4.5, 5.22, and 2.6 of-
fenses, I am not imposing a separate sanction for
your 2.11 offense.
J.A. 114–15. We note also the AJ’s observation at J.A. 16
that “[t]his was not an especially egregious case of ob-
struction. The agency did not prove that the written
statement [Parkinson] drafted for the landlord was incor-
rect or that he asked the landlord to lie about any-
thing. Tr. 105, 116. The agency’s proposal suggested that
this was the least serious of the charges, and that on its
PARKINSON v. DOJ 35
own it would have merited only a suspension rather than
removal.”
From the foregoing, it should be appreciated by the
Board on remand that the penalty of removal, which was
predicated on the now overturned lack of candor charge,
cannot be sustained. Moreover, this court and the Board
have made clear that, when “the Board sustains fewer
than all of the agency’s charges,” the Board must defer to
the agency’s clear statement in “its final decision . . . that
it desires a lesser penalty [than the maximum reasonable
penalty] be imposed on fewer charges.” J.A. 49 (Board
decision in this case) (citing Lachance v. Devall, 178 F.3d
1246, 1260 (Fed. Cir. 1999)). Accordingly, the maximum
penalty that can be sustained by the Board for the sole
charge remaining in this case is a suspension of up to 30
days. Whether and to what extent the FBI, in the Board
proceedings, has established more than the single in-
stance of obstruction noted in the AJ’s opinion at J.A. 14–
16 and the Board’s opinion at J.A. 38–40, or any other
basis to warrant greater than a 10-day suspension for the
obstruction charge is a question to be determined by the
Board on remand.
CONCLUSION
For the foregoing reasons, the Board’s decision relat-
ing to the lack of candor charge is reversed, its decision
relating to the obstruction charge is vacated and the case
is remanded for further proceedings consistent with this
opinion.
REVERSED-IN-PART, VACATED-IN-PART AND
REMANDED
COSTS
Each party shall bear its own costs.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN C. PARKINSON,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2015-3066
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-13-0032-I-2.
______________________
TARANTO, Circuit Judge, dissenting in part.
I join the court’s opinion except for the analysis of
whistleblower reprisal, centered on Part II.D.1. In that
portion of its opinion, the court holds that the Merit
Systems Protection Board, in exercising its undisputed
authority to review Mr. Parkinson’s removal from his FBI
position, see 5 U.S.C. §§ 7512, 7701, must adjudicate in
particular Mr. Parkinson’s claim that the removal consti-
tuted whistleblower reprisal in violation of 5 U.S.C.
§ 2303. I would hold, in agreement with the Board, that
the Board may not decide that issue in deciding Mr.
Parkinson’s challenge to his removal.
It is plain under the statute that the prohibitions on
whistleblower reprisal codified in 5 U.S.C. § 2302(b)(8) do
not apply to the FBI: Congress expressly carved the FBI
2 PARKINSON v. DOJ
out of the definition of “agency” governing § 2302(b)’s
coverage. 5 U.S.C. § 2302(a)(2)(A), (C). The FBI’s reprisal
against an employee for whistleblowing is addressed by a
separate provision, § 2303, which provides more limited
protection than § 2302(b)—protecting from reprisal only
whistleblower disclosures made “to the Attorney General”
(or her designee), not disclosures made to outsiders.
§ 2303(a). With § 2302(b)(8) inapplicable, Mr. Parkinson’s
whistleblower-reprisal contention is necessarily a conten-
tion that the FBI violated § 2303, as Mr. Parkinson made
explicit in his Petition for Review to the Board. J.A. 964.
To seek relief from the Board based on § 2303—for
what is undisputedly an adverse action (removal) within
the Board’s review authority, 5 U.S.C. § 7512—Mr. Par-
kinson invokes 5 U.S.C. § 7701(c)(2). In relevant part,
that provision instructs the Board that “the agency’s
decision may not be sustained if the employee or applicant
for employment . . . (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.” Mr. Parkinson cannot invoke
(B), but he invokes (C). He argues that the FBI’s removal
of him was a whistleblower reprisal forbidden by § 2303,
hence “not in accordance with law,” requiring that his
removal be set aside.
I would reject the contention that § 2303 violations
come within the “not in accordance with law” directive to
the Board. I would read § 2303 as sufficiently embodying
a determination by Congress, the President, and the
Attorney General that § 2303 claims of FBI reprisal for
whistleblower disclosures made to the Attorney General
(the only disclosures protected by § 2303) are outside the
Board’s jurisdiction and within the full and final control of
the Attorney General. No provision so states expressly.
But the limit on Board review of § 2303 issues seems to
me a clear enough implication of the congressional and
executive decisions that I would find § 7701(c)(2)(C)
PARKINSON v. DOJ 3
inapplicable under the principle that a sufficiently specific
remedial regime can displace an otherwise-available
general remedy whose application would impair policies
evident in the specific remedial provisions. See, e.g.,
United States v. Bormes, 133 S. Ct. 12, 18 (2012); RadLAX
Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct.
2065, 2071 (2012); Hinck v. United States, 550 U.S. 501,
507–08 (2007); EC Term of Years Trust v. United States,
550 U.S. 429, 433–34 (2007); Block v. North Dakota ex rel.
Bd. of Univ. & Sch. Lands, 461 U.S. 273, 285 (1983);
Brown v. Gen. Servs. Admin., 425 U.S. 820, 831–33
(1976).
When Congress enacted the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (1978), it de-
fined a series of “prohibited personnel practices” in
§ 2302, which included, in § 2302(b)(8), a bar on whistle-
blower reprisal. See 92 Stat. at 1115–16. But Congress
expressly made that provision inapplicable to the FBI. 92
Stat. at 1115. It enacted a separate section, § 2303, to
protect against some whistleblower reprisals by the FBI.
In subsection (a), Congress stated a limited reprisal rule
to govern the FBI, protecting only disclosures made to the
Attorney General or her designee, not disclosures made to
anyone else. 92 Stat. at 1117–18. In subsection (b),
Congress provided that the Attorney General should
promulgate regulations to ensure compliance with the
reprisal bar. And in subsection (c), Congress declared
that “[t]he President shall provide for the enforcement of
this section in a manner consistent with the provisions of
section 1206 of this title.” 92 Stat. at 1117–18.
The referred-to section 1206 was the 1978 Act’s provi-
sion defining the authority and duty of the Board’s Spe-
cial Counsel to investigate prohibited personnel practices.
See 92 Stat. at 1125–30. Neither that provision nor
others provided employees a general right to seek Board
review of whistleblower reprisal. But 5 U.S.C.
§ 7701(c)(2) was part of the 1978 Act, see 92 Stat. at 1138,
4 PARKINSON v. DOJ
and that provision authorized the Board to hear (and the
Board did hear) whistleblower-reprisal and other prohib-
ited-personnel-action challenges asserted by employees
who had been subjected to otherwise-appealable adverse
actions such as removals, with the Board’s decisions then
subject to judicial review. See Knollenberg v. MSPB, 953
F.2d 623, 625 (Fed. Cir. 1992); Hagmeyer v. Dep’t of
Treasury, 757 F.2d 1281, 1283–84 (Fed. Cir. 1985); Sulli-
van v. Dep’t of Navy, 720 F.2d 1266, 1275 (Fed. Cir. 1983).
In particular, as already noted, Congress separately
directed the Board not to sustain an agency decision
within its reviewing authority if the challenger “(B) shows
that the decision was based on any prohibited personnel
practice described in section 2302(b)” or “(C) shows that
the decision was not in accordance with law.” 5 U.S.C.
§ 7701(c)(2). It is conspicuous that Congress, having
carved the FBI out of § 2302(b) and adopted § 2303 as a
limited FBI-specific counterpart, chose not to include
§ 2303 in the provision of § 7701(c)(2) specifically address-
ing prohibited personnel practices, despite the overlap of
whistleblower-reprisal subject matter. That omission on
its face tends to suggest that Congress was excluding FBI
whistleblower reprisal from Board review, notwithstand-
ing the catchall “not in accordance with law” language.
In 1989, Congress enacted the Whistleblower Protec-
tion Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (1989).
That Act strengthened the general whistleblower protec-
tions of § 2302(b)(8). Among other things, the 1989 Act
created a new Office of Special Counsel (OSC) with vari-
ous powers, see 5 U.S.C. §§ 1211–19; 103 Stat. at 19–29,
and it also specifically provided a new Individual Right of
Action, see 5 U.S.C. §§ 1214(a)(3), 1221, by which an
employee, applicant, or former employee may bring to the
Board whistleblower claims covered by § 2302(b)(8), see
103 Stat. at 24, 29–31. Those provisions replaced the
former 5 U.S.C. § 1206, which now provides for certain
annual reports. See 103 Stat. at 18–19. The 1989 Act
PARKINSON v. DOJ 5
made only one change in the limited FBI-specific whistle-
blower-reprisal provision, § 2303. It changed subsection
(c)’s reference to “the provisions of section 1206” so that
the provision now directs the President to provide for
enforcement in a manner consistent with “applicable
provisions of sections 1214 and 1221.” See 103 Stat. at 34.
In 1997, the President formally delegated to the At-
torney General his responsibilities under § 2303(c) to
establish means for enforcing the limited reprisal protec-
tion of § 2303(a). Memorandum, Delegation of Responsi-
bilities Concerning FBI Employees Under the Civil
Service Reform Act of 1978, 62 Fed. Reg. 23,123 (Apr. 14,
1997). The President directed the Attorney General “to
establish appropriate processes within the Department of
Justice to carry out these functions.” Id. (emphasis add-
ed).
The Attorney General, after adopting an interim rule
in 1998, adopted a final rule to govern § 2303 in Novem-
ber 1999. 64 Fed. Reg. 58,782, 58,786–88 (Nov. 1, 1999)
(adopting 28 C.F.R. §§ 27.1–27.6). Like the interim rule,
the final rule establishes the Office of Professional Re-
sponsibility (OPR) and the Office of Inspector General
(OIG) as investigative authorities (each labeled a “Con-
ducting Office”), and it designates the Director of the
Office of Attorney Personnel Management (Director) to
“decide whistleblower reprisal claims presented to her by
OPR or OIG.” Id. at 58,783. The Attorney General ex-
plained that “the roles and functions of the Conducting
Office and the Director are thus analogous to those of the
OSC and MSPB, respectively, in whistleblower cases
involving federal employees generally.” Id.She then explained a crucial difference—the retention
of internal Department control of § 2303 matters. “One
fundamental difference, however, between the two sys-
tems is that the procedures provided in the interim rule
[not changed in the final rule in this respect] are entirely
6 PARKINSON v. DOJ
internal to the Department.” Id. She cited in support of
that determination (a) the fact that the only protected
disclosures are certain disclosures within the Depart-
ment, (b) the President’s 1997 directive to establish
processes within the Department, and (c) legislative
history to the effect that “ ‘appeals would not be to the
outside but to the Attorney General.’ ” Id. (quoting 124
Cong. Rec. 28,770 (1978) (pre-Conference statement of
Representative Udall, who came to chair the Conference
Committee on the Civil Service Reform Act in 1978). The
Attorney General reiterated the point in rejecting a
comment suggesting that the statute required “entities
external to and independent of the Department” to carry
out the § 2303 roles. Id. at 57,785. “If Congress had
wanted to provide FBI employees with fora outside the
Department to address their whistleblower reprisal
claims, it could have included them in the OSC/MSPB
scheme. The fact that Congress did not do so, see 5 U.S.C.
2302(a)(2)(C)(ii), strongly suggests that Congress, in
enacting section 2303, did not envision the creation of
external entities to perform the OSC/MSPB functions.”
64 Fed. Reg. at 58,785–86.
Rounding out the relevant legal materials is what the
Conference Committee said in explaining the conference
bill that was adopted as the Civil Service Reform Act in
1978. The Conference Committee explained:
The conference substitute excludes the FBI from
coverage of the prohibited personnel practices, ex-
cept that matters pertaining to protection against
reprisals for disclosure of certain information de-
scribed in section 2302(b)(8) would be processed
under special procedures similar to those provided
in the House bill. The President, rather than the
Special Counsel and the Merit Board, would have
responsibility for enforcing this provision with re-
spect to the FBI under section 2303.
PARKINSON v. DOJ 7
S. Rep. No. 95-1272, at 128 (1978). The Conference
Committee’s language is not limited to the special § 1206
enforcement route. The 1978 Act being addressed by the
Conference Committee included 5 U.S.C. § 7701(c)(2)’s
directive to the Board not to sustain removals and other
adverse actions that were “not in accordance with law.”
Based on the pertinent statutory provisions, their evo-
lution, their legislative history, and the actions of the
President and Attorney General under the delegated
implementation authority, I would conclude that the
Board is not to adjudicate claims that the FBI engaged in
whistleblower reprisal proscribed by § 2303(a). To apply
§ 7701(c)(2)(C)’s general, catchall “not in accordance with
law” provision would be to impair the determination—
strongly suggested by the congressional actions and
statements, and made explicit by the President and the
Attorney General—that resolution of such issues should
be confined to the Department of Justice, which is the
only recipient of disclosures protected from reprisal in the
first place. The statutory materials provide substantial
support for that conclusion, and given the implementa-
tion-authority grants of § 2303(b) & (c), it seems to me
that the determination to that effect by the President and
the Attorney General, made after the 1989 amendments,
is owed deference as a formal exercise of expressly dele-
gated authority.
Because this is an issue-specific exclusion from Board
authority, I do not see why it matters that Mr. Parkinson
is eligible to bring his removal to the Board for adjudica-
tion of other challenges under 5 U.S.C. §§ 7512–7513,
7701. And I do not see why it should make a difference
that Mr. Parkinson is raising the issue of whistleblower
reprisal as an affirmative defense to his removal (he has
the burden of persuasion), in a proceeding in which the
FBI has the burden of affirmatively justifying the removal
under 5 U.S.C. § 7701(c)(1)(B). That posture does not
eliminate either a general concern about outside-the-
8 PARKINSON v. DOJ
Department interference in FBI whistleblower-reprisal
matters or a specific concern about the potential leaking
of sensitive law-enforcement or intelligence information.
Van Lancker v. Dep’t of Justice, 119 M.S.P.R. 514, 519
(2013). The reasons for excluding the Board from ruling
on the issue do not depend on the procedural posture
before the Board.
For those reasons, I respectfully dissent from the
holding that Mr. Parkinson may pursue his whistleblow-
er-reprisal claim.