[00:00:00] Speaker 01: Case number 23-1216, Garrett O. Boyle Petitioner versus United States Department of Justice. [00:00:08] Speaker 01: Mr. Sisney for the petitioner, Ms. [00:00:10] Speaker 01: Vomenkova for the respondent. [00:00:14] Speaker 02: Good morning, Mr. Sisney. [00:00:17] Speaker 03: Good morning, Your Honor. [00:00:18] Speaker 03: Good morning. [00:00:21] Speaker 03: Judge Wilkins, Judge Pan, Judge Rogers. [00:00:25] Speaker 03: May it please the court. [00:00:26] Speaker 03: My name is Ben Sissney for the American Center for Law and Justice, and I'm here on behalf of FBI Special Agent Garrett O'Boyle. [00:00:33] Speaker 03: We're here because the Department of Justice insists that it can suspend the security clearance and employment of a whistleblower as retaliation for any reason with no judicial or tribunal review. [00:00:48] Speaker 03: We're here because the DOJ relentlessly seeks to defend its position, but not just this court, [00:00:54] Speaker 03: But no one, no court, no judge, or tribunal should be able to even hear an FBI whistleblower's argument of unconstitutional retaliation. [00:01:06] Speaker 03: There are two separate issues for this court's review, a constitutional issue and a statutory issue. [00:01:12] Speaker 03: First, for the constitutional question. [00:01:15] Speaker 03: The Supreme Court decision in Department of the Navy versus Eagan [00:01:20] Speaker 03: does not deny judicial review of Special Agent O'Boyle's constitutional injuries. [00:01:26] Speaker 03: In fact, the Supreme Court decision from this court, Webster v. Doe, allows it. [00:01:32] Speaker 03: This is what happens. [00:01:34] Speaker 03: The FBI suspends an employee's clearance, then it suspends the employee's employment without pay. [00:01:42] Speaker 03: You can't look at why the employment was suspended because he has no clearance. [00:01:48] Speaker 03: And that's apparently a required aspect of employment. [00:01:54] Speaker 03: He has no clearance, but you can't look at why he has no clearance. [00:01:57] Speaker 03: Their position is not even the process by which they reached that decision. [00:02:03] Speaker 03: It's the method and process. [00:02:05] Speaker 04: Why did you appeal to this court instead of the Federal Circuit? [00:02:13] Speaker 03: In our view, the All Circuits Review Act allowed it, first off. [00:02:17] Speaker 03: But maybe more to your honor's question. [00:02:20] Speaker 03: This court's jurisprudence has more favorably viewed the exception, the constitutional exception, to the Egan decision over the years. [00:02:32] Speaker 03: And I'd go back to the Greenberg decision in 93, the Gill decision. [00:02:37] Speaker 04: So you thought our case law was more favorable to you. [00:02:40] Speaker 04: But the statute. [00:02:43] Speaker 04: It seems pretty clear to me that you can only be here under certain circumstances. [00:02:49] Speaker 04: And one of them is if you raise a challenge to a prohibited personnel practice described in Section 2302 and a bunch of subsections of 2302. [00:03:01] Speaker 04: But that section excludes the FBI. [00:03:06] Speaker 03: So I would contend, Your Honor, [00:03:11] Speaker 03: Well, first off, 23021A defines prohibited personnel practices for the entire title, all of Title V, which includes 2302 of III, 7701, and the All Circuits Review Act, 7703. [00:03:24] Speaker 03: But the statute in 7701 and 7703 uses the term described in. [00:03:33] Speaker 03: So describing a prohibited personnel practice, essentially whistleblower retaliation or reprisal, [00:03:39] Speaker 03: is described in 2302, again, for the sake of the entire title, not just the session. [00:03:45] Speaker 03: And the FBI is excluded from just the next section. [00:03:50] Speaker 04: And so if an FBI employee- I'm sorry, it's a personnel action that's taken by an agency, but then it defines an agency to mean an executive agency, but does not include the Federal Bureau of Investigation. [00:04:07] Speaker 04: So it seems that [00:04:09] Speaker 04: Mr. Boyle's claims don't fall within the statute. [00:04:12] Speaker 03: I contend that they do respectfully, your honor, because he's just he's alleging conduct that is that which is described in or consistent with what's described in 23 02. [00:04:22] Speaker 03: It doesn't the 77 01 and 77 03 do not say, you know, a federal employee who brought an action pursuant to or governed by or authorized by 23 02. [00:04:35] Speaker 03: It just says if they can describe conduct [00:04:39] Speaker 03: or if they raise conduct that was described in, and jurisprudence generally recognizes the distinction between described in, Congress's use of described in versus authorized by. [00:04:51] Speaker 02: Even if we kind of take your point that described in might have a broader meaning or a different meaning than pursuant to, we don't just, you know, [00:05:03] Speaker 02: determine what a statute means by parsing one word. [00:05:07] Speaker 02: We look at the whole context. [00:05:10] Speaker 02: And the whole context here is that Congress wanted the FBI to kind of go through a different administrative route and a different route of review than other executive department employees. [00:05:29] Speaker 02: That's the overall context here. [00:05:32] Speaker 02: So [00:05:34] Speaker 02: If that's the context, you have to point to some pretty strong evidence to kind of rebut that context. [00:05:45] Speaker 02: And I don't know that hanging your hat on to describe it by is sufficient. [00:05:52] Speaker 03: Well, I don't hang it solely on the described end. [00:05:58] Speaker 03: Your Honor mentions context, and part of the context here is very much, and it's reflected in the legislative history that we address more at length in our briefs. [00:06:06] Speaker 03: Congress was, and this goes to Your Honor Judge Pan's question as well, Congress was displeased with the Federal Circuit and the trend of restriction of whistleblower protections. [00:06:19] Speaker 03: That's reflected in their legislative history, and they wanted to expand [00:06:25] Speaker 03: review, judicial review, to other circuits. [00:06:28] Speaker 03: And one of the phrasings in the legislative history is to create a circuit split, in a sense, so that the circuits could all sort of check each other. [00:06:36] Speaker 03: So it wasn't just a monopoly by the federal circuit. [00:06:39] Speaker 03: They wanted to expand access to judicial review, Your Honor, after the administrative process. [00:06:45] Speaker 03: I can see there's a separate administrative process for FBI employees. [00:06:49] Speaker 04: But we're talking about- But then shouldn't Congress have included 2303? [00:06:54] Speaker 04: within this provision and said that other circuits can review matters from 2303. [00:07:00] Speaker 03: That was with respect to 7701 and 7703, I believe the legislative history, making the All Circuits Review Act permanent after its five-year probationary period. [00:07:18] Speaker 04: Right, but I guess my question is just there seems to be a separate [00:07:22] Speaker 04: provision and procedure that FBI agents are supposed to follow. [00:07:26] Speaker 04: And that's described in a different statute, which is 2303. [00:07:29] Speaker 04: And you're trying to rely on all these provisions that talk about 2302 by saying it's similar. [00:07:34] Speaker 04: But it just seems like if Congress had intended for these types of claims to be encompassed by the All Circus Review Act, they would have included 2303. [00:07:43] Speaker 03: I contend that Congress [00:07:48] Speaker 03: It certainly could have been clear, but it was clear enough in the plain language of alleging action described in 2302, which again describes it for the entire title. [00:08:00] Speaker 03: I mean, it had to point somewhere for that definition. [00:08:04] Speaker 04: What was described in there doesn't include the FBI. [00:08:10] Speaker 03: I think two points that Your Honors are making as well is that [00:08:15] Speaker 03: I mean, I stand on the plain language of the statute, but if there's an ambiguity, which I understand the argument that there is, that if Congress could have done it more clearly... If we think it's clear, should we transfer this case to the Federal Circuit? [00:08:37] Speaker 03: I believe that's within this court's prerogative to do that. [00:08:42] Speaker 04: If we don't do that, you don't get an appeal, is that correct? [00:08:46] Speaker 04: Because all your time has run out to appeal. [00:08:50] Speaker 04: So the only way to preserve your right to appeal, if we think we don't have jurisdiction, is to transfer it to the federal circuit. [00:08:59] Speaker 03: That's probably correct, if I'm understanding, Your Honor. [00:09:03] Speaker 04: Well, it's correct that you cannot, if we decide that we have no jurisdiction and we don't transfer it, it's too late for you to appeal this ruling to the federal circuit, isn't it? [00:09:14] Speaker 03: Oh, to the federal, yes. [00:09:15] Speaker 03: Yes, Your Honor, I believe it would need to be transferred to maintain the chain of jurisdiction. [00:09:23] Speaker 02: I see. [00:09:25] Speaker 02: Judge Rogers, do you have any questions? [00:09:27] Speaker 00: No, thank you. [00:09:29] Speaker 02: I don't know if you wanted to save any time for rebuttal. [00:09:31] Speaker 02: We'll give you a little bit. [00:09:33] Speaker 02: If you just want to just wrap up. [00:09:36] Speaker 03: Yes, I'll wrap up briefly, Your Honor. [00:09:38] Speaker 03: We just we asked, of course, the court to overturn the Maryland Citizens Protection Board decision to give Special Agent Aboyle his full day in court so that his constitutional claims can be heard as well. [00:09:50] Speaker 03: And I'd like to reserve just a minute for rebuttal if I could. [00:09:53] Speaker 03: All right, we'll give you some time. [00:09:54] Speaker 03: Thank you, Your Honor. [00:10:06] Speaker 02: Um, good morning, Miss Fullman Cove. [00:10:08] Speaker 02: Good morning, Your Honor. [00:10:11] Speaker 05: Just get myself situated here in one second. [00:10:22] Speaker 05: Good morning, Your Honor. [00:10:23] Speaker 05: May it please the court? [00:10:25] Speaker 05: Uh, although in order to prevail in this appeal, Mr Will has to run the table on all four of the issues that we identified in our briefing. [00:10:32] Speaker 05: I think the simplest and most straightforward resolution for the court [00:10:35] Speaker 05: is that this petition was filed in the wrong court. [00:10:38] Speaker 05: It belongs in the Federal Circuit, if it belonged anywhere, but not in this court. [00:10:42] Speaker 05: And the language in section 7703 makes clear that in order for this court to have jurisdiction, there has to be the disposition of an allegation of a prohibited personnel practice described in section 2302B8 or a subset of B9, and actions taken by the FBI [00:11:05] Speaker 05: simply cannot be described in either of those sections. [00:11:10] Speaker 05: Section 2302 doesn't define personnel action or prohibited personnel actions for the entire title. [00:11:18] Speaker 05: It is quite specific. [00:11:20] Speaker 05: For purposes of this section, it defines personnel action [00:11:24] Speaker 05: And it defines them specifically by reference to with respect to an employee in or applicant for a covered position in an agency and actions taken by an agency. [00:11:35] Speaker 05: And the definition of agency for purposes of 2302 specifically categorically excludes the Federal Bureau of Investigation. [00:11:43] Speaker 05: So just as a matter of the English language, actions taken by the FBI can't be described in these sections. [00:11:51] Speaker 05: And therefore, this court does not have jurisdiction over this petition. [00:11:56] Speaker 05: To pan your question in terms of whether it should be transferred or dismissed, [00:12:00] Speaker 05: I think that's within the court's discretion. [00:12:02] Speaker 05: Certainly, I think any of the other issues that were raised in our briefing would be sufficient for the court to conclude that it is not in the interest of justice to transfer the case and to just to dismiss it outright. [00:12:13] Speaker 05: But I would agree that it would be within the court's discretion to transfer or dismiss if it agrees. [00:12:21] Speaker 02: Aren't these substantial questions that you don't merit? [00:12:27] Speaker 02: You know, substantive review by some court. [00:12:31] Speaker 02: So how is it in the interest of justice for us to say? [00:12:34] Speaker 02: No, we're not even going to transfer it so that the Federal Circuit can. [00:12:40] Speaker 02: Take a look at this. [00:12:43] Speaker 05: Issue sure well, for example, one of the arguments we make is is that Mr Will forfeited or waived these arguments, and if the court were to agree with us, then that then there would be no reason to transfer it to the Federal Circuit and they could just dismiss outright. [00:12:57] Speaker 05: But I do agree that I think it is certainly within the court's discretion to transfer the case if it concludes that it does not have jurisdiction. [00:13:05] Speaker 04: As a procedural matter, though, what you're suggesting is that we should take a peek at the merits, even though we have no jurisdiction to do so. [00:13:12] Speaker 05: Sure. [00:13:12] Speaker 05: And I think 1631, courts have recognized that it specifically allows the court to do that in the requirement that it be in the interests of justice to transfer the case. [00:13:22] Speaker 05: I believe Judge Posner discussed that explicitly in the Seventh Circuit case that we cited, that requirement somewhat paradoxically, but enables the court to take a peek at the merits to ensure that we're not just burdening sister courts, sister circuit courts with petitions that are going to be immediately dismissed upon arrival. [00:13:46] Speaker 05: So I do think the court is permitted to do that if it was so inclined. [00:13:51] Speaker 02: in the peak would be from the perspective of what we think the Federal Circuit would do as far as applying their own jurisprudence with respect to waiver and forfeiture, right? [00:14:02] Speaker 05: I think that's right. [00:14:03] Speaker 05: Yes, it's sort of a, you know, is this a, you know, would it be in the interest of justice for the Federal Circuit to take this up? [00:14:14] Speaker 05: I'm happy to address any of the other issues we raised. [00:14:17] Speaker 05: I don't know that they came up. [00:14:20] Speaker 05: other than the jurisdictional one. [00:14:22] Speaker 02: Judge Rogers, do you have any questions? [00:14:25] Speaker 00: No, but I do want to clarify, I understood your question and I want to be sure counsel understood it that way or I'll ask it that way. [00:14:34] Speaker 00: Do we apply the federal circuit law of forfeiture and waiver as opposed to this court's law of forfeiture and waiver in deciding [00:14:49] Speaker 00: whether it would be in the interest of justice to transfer the case to the Federal Circuit. [00:14:55] Speaker 05: I think that probably is what makes the most logical sense to me. [00:14:58] Speaker 05: I don't know if that has been sort of specifically litigated, so I don't have a case in mind on that issue. [00:15:04] Speaker 05: But sort of just as a matter of pure logic, I think that to the extent there are any differences, it would make more sense to apply the Federal Circuit's case law, because that would be where it was going, and that would be where that would be decided then. [00:15:19] Speaker 05: Thank you. [00:15:21] Speaker 02: All right. [00:15:21] Speaker 02: Thank you. [00:15:28] Speaker 02: All right, Mr. Sisney. [00:15:30] Speaker 02: I think you only had about 30 seconds left, but we'll give you two minutes. [00:15:34] Speaker 02: Thank you, Your Honor. [00:15:35] Speaker 02: I appreciate the indulgence. [00:15:37] Speaker 03: I'll be brief. [00:15:39] Speaker 03: Just a couple of brief points. [00:15:41] Speaker 03: is that, back to the described in phrase, is that it's on its face and it's plain language of the statute. [00:15:49] Speaker 03: If an FBI employee alleges conduct that was described in matches that which is described in some other statute somewhere else. [00:15:57] Speaker 03: that that's enough, that on its face, that's enough, and that the interpretational aides would support that conclusion with the concerns of not restricting access to a constitutional remedy, the veterans canon, and these are other matters briefed more fully. [00:16:13] Speaker 03: But I just wanted to call the court's attention to that. [00:16:15] Speaker 03: And then secondly, to Judge Plager and Judge Lynn's dissent and the decision in Parkinson out of the Federal Circuit, [00:16:27] Speaker 03: There's a comment there that I think bears repeating here. [00:16:31] Speaker 03: And I'm quoting, no amount of parsing of tangential statutes and regulatory provisions can justify a basic denial of the right to make one's best case to the designated arbiter of one's fate. [00:16:44] Speaker 03: And to your point earlier, Judge Pan, it takes several steps to piece together the conclusion that an FBI employee [00:16:54] Speaker 03: can't allege conduct that was described in 2302, where on its face, if you just read it straight up, he can allege something and did that matches what's described in 2302. [00:17:09] Speaker 03: And again, that's non-exclusive language. [00:17:13] Speaker 03: Congress knows how to specify. [00:17:14] Speaker 03: We only want this FBI employee to be able to access the All Circuits Review Act if Congress wants to restrict judicial review of a constitutional remedy and must do so clearly. [00:17:26] Speaker 03: With that, Your Honor, unless there's any additional questions, I'll conclude. [00:17:31] Speaker 03: And again, we ask for support to reverse. [00:17:32] Speaker 03: Thank you very much. [00:17:33] Speaker 02: Thank you. [00:17:34] Speaker 02: We'll take the matter under advice.