[00:00:01] Speaker 07:
The in-bank case for argument this morning is 15-3066, Parkinson versus Department of Justice.

[00:00:11] Speaker 07:
Ms.

[00:00:12] Speaker 07:
MacLennan, whenever you're ready.

[00:00:28] Speaker 06:
Good morning.

[00:00:29] Speaker 06:
May it please the court, I'm Kathleen McClellan on behalf of the appellant, John Parkinson.

[00:00:34] Speaker 06:
Mr. Parkinson can assert a whistleblower retaliation affirmative defense under section 7701 C2C because the MSPB has jurisdiction to review the FBI's removal decision under section 7701.

[00:00:48] Speaker 06:
Congress intended for preference eligible veterans at the FBI to first have appeal rights that other FBI employees do not have and two,

[00:01:00] Speaker 06:
to have rights that other preference eligible veterans at other national security agencies do not have.

[00:01:05] Speaker 06:
That is a unique position for FBI preference eligible veterans.

[00:01:10] Speaker 06:
And Congress did not expressly or implicitly repeal Section 7701 C2C for preference eligible employees at the FBI.

[00:01:18] Speaker 06:
And this court should not read an implication into Section 7701 that Congress did not put there.

[00:01:25] Speaker 07:
But the whole thought process with respect to allowing preference eligible FBI employees to appeal to the MSPB is separate and distinct from the thought process that goes into whether or not employees of a particular agency should have the rights that whistleblowers have, right?

[00:01:43] Speaker 07:
It's a different thinking that goes into the two.

[00:01:46] Speaker 07:
In other words, we can assume, and it's clear from the legislation, that Congress thought about FBI employees, what they do, and why whistleblower protection should be separate and distinct from other employees.

[00:01:58] Speaker 07:
So there's a different analysis that goes into those two questions, is there not?

[00:02:02] Speaker 06:
There is a different analysis into those two questions when it comes to the MSPB's jurisdiction.

[00:02:07] Speaker 06:
But here, the MSPB has jurisdiction over the removal decision, and Congress intentionally put in affirmative defenses.

[00:02:14] Speaker 06:
as part of that jurisdiction, including one that said not in accordance with the law.

[00:02:20] Speaker 06:
Retaliation against FBI whistleblowers is not in accordance with the law.

[00:02:24] Speaker 06:
And there's nothing in Section 2303 that limits an affirmative defense.

[00:02:32] Speaker 09:
Is there anything in Section 2303 that makes the separate whistleblower protection process within the FBI exclusive?

[00:02:43] Speaker 06:
No.

[00:02:45] Speaker 06:
In fact, the whistleblower statutory scheme actually envisions scenarios in which the MSPB would consider whistleblower issues separately on a direct appeal under Section 7513 than they would under the Whistleblower Protection Act.

[00:03:02] Speaker 06:
For employees that are not at the FBI, those employees can either bring an individual right of action to the Whistleblower Protection Act, or if they're subjected to a removal or suspension over

[00:03:13] Speaker 06:
14 days, they can bring a chapter 75 appeal to the MSPB and assert whistleblower retaliation as an affirmative defense.

[00:03:19] Speaker 06:
So even that scheme embodies the idea that there might be times when the MSPB looks at whistleblower issues, even though there's not an independent whistleblower cause of action.

[00:03:30] Speaker 06:
And in fact, the Whistleblower Protection Act, sections 1221B and 1214, specifically say that they are not to be construed to interfere with direct appeal rights.

[00:03:40] Speaker 06:
So Judge Post, you're absolutely right.

[00:03:43] Speaker 06:
There was a different idea when it came to independent causes of action.

[00:03:47] Speaker 06:
But that idea was put into the Whistleblower Protection Act and 2303 with the idea that that would not interfere with direct appeal rights under section 75.

[00:04:01] Speaker 01:
Under 2303, is there judicial review of the internal FBI decision on whistleblower compliance?

[00:04:11] Speaker 06:
Not for an independent cause of action.

[00:04:13] Speaker 01:
There's not judicial review.

[00:04:20] Speaker 06:
Not for an action brought under Section 2303 through that process.

[00:04:28] Speaker 06:
However,

[00:04:29] Speaker 06:
The MSPB regularly reviews all kinds of collective bargaining agreements and statutes that do not give rise to jurisdiction.

[00:04:37] Speaker 06:
This is not a question of whether or not the MSPB can review the removal action.

[00:04:41] Speaker 01:
And in the course of reviewing that removal action... I'm not talking about the MSPB.

[00:04:46] Speaker 01:
I'm talking about APA review of the FBI director's decision.

[00:04:49] Speaker 01:
There's not a... There is no review?

[00:04:51] Speaker 03:
No.

[00:04:54] Speaker 03:
Okay.

[00:04:54] Speaker 03:
The new December 2016 statute does not apply to this case, or does?

[00:05:00] Speaker 06:
Whether or not it applies retroactively is not a question that I don't think we need to answer because the new statute applies to disclosures and who an FBI employee can make a disclosure to.

[00:05:16] Speaker 06:
the internal process under 2303 remains the same.

[00:05:19] Speaker 06:
But that's not, in this matter, what Mr. Parkinson is using vis-a-vis the removal.

[00:05:26] Speaker 06:
He's asserting whistleblower retaliation as an affirmative defense to the removal action only in the confines of the MSPB's jurisdiction over the removal.

[00:05:35] Speaker 03:
And can I also ask, this is a case in which the only

[00:05:40] Speaker 03:
point you raise with respect to whistleblowing is the availability of the affirmative defense.

[00:05:46] Speaker 03:
You had not made a contention that the government in sustaining its affirmative burden of justifying removal cannot be held to have met that burden because a crucial, say, credibility determination is impossible to make if the board is barred from looking at retaliation.

[00:06:10] Speaker 06:
I'm not 100% sure I understand your question.

[00:06:15] Speaker 03:
Let me put it this way.

[00:06:17] Speaker 03:
It seems to me it's entirely possible to say that there is no affirmative defense for a 2303 violation and still to say there might conceivably be a case in which the government coming in affirmatively to justify under 7513 its removal

[00:06:37] Speaker 03:
would meet a response from the board that says, for you to meet that, to prove your case, your affirmative case, credibility of deciding official A is crucial.

[00:06:51] Speaker 03:
We cannot decide that that official is credible when we know there's a retaliation charge and we can't adjudicate it.

[00:07:00] Speaker 03:
But that issue is not presented here.

[00:07:02] Speaker 06:
No, and in theory, that could potentially happen.

[00:07:05] Speaker 06:
However, in dismissing our affirmative defense of whistleblower retaliation, the administrative judge restricted discovery in accordance with that ruling, and so we were unable to fully probe the credibility of those officials

[00:07:17] Speaker 06:
based on whether or not they were motivated by retaliatory bias, because the administrative judge held that that was part of the whistleblower affirmative defense that he had dismissed.

[00:07:27] Speaker 03:
But that wasn't an issue that you appealed to this court on, just the availability of 2303 as an affirmative defense.

[00:07:38] Speaker 06:
Yes, but the affirmative defense, I think, comes from section 7701, not 2303.

[00:07:45] Speaker 03:
Well, the substantive violation, that is the law that you say they did not act in accordance with is 2303.

[00:07:51] Speaker 06:
Yes.

[00:07:55] Speaker 06:
I think it's also important to address the results.

[00:08:00] Speaker 06:
that would occur if this court were to adopt the Justice Department's position.

[00:08:04] Speaker 06:
It would create a burdensome dual system that would prejudice veterans' appeal rights, because the Justice Department would then be the defendant in one action before the MSPB, challenging whether or not the removal was valid, and the adjudicator in another action before OARM, determining whether or not the removal was retaliation.

[00:08:23] Speaker 06:
And that clearly would prejudice any appellant because it's hard to see how the Justice Department could possibly objectively determine whether or not the removal is retaliation while simultaneously defending the removal on the merits before the MSPB in this court.

[00:08:40] Speaker 06:
And it would also force veterans into years of expensive litigation parsing out a critical part, potentially, of their case.

[00:08:47] Speaker 06:
And in Mr. Parkinson's case, certainly,

[00:08:49] Speaker 06:
a critical part and that burden and that prejudice is particularly apparent in Mr. Parkinson's case because the DODIG report that led to his removal made a finding that there was no whistleblower retaliation.

[00:09:03] Speaker 06:
Now that's a contention in the DODIG report that the DOJ relied on to fire him that we were not allowed to fully challenge because our affirmative defense was dismissed and that's the prejudice that would result if not in accordance with the law is read to have an exclusion for 2303.

[00:09:21] Speaker 02:
How do you explain the fact that in the nearly 40 years since the CSRA was enacted, Congress has repeatedly tried to get judicial review for FBI employees and has failed, even as recently as last year?

[00:09:35] Speaker 02:
It seems very clear that Congress understands FBI employees have no judicial review.

[00:09:45] Speaker 06:
I think that's true with respect to an independent cause of action.

[00:09:49] Speaker 06:
However, I think Congress equally and repeatedly gave preference eligible veterans appeal rights to the MSPB and has repeatedly expressed that those rights exist and that they want them to continue to exist.

[00:10:02] Speaker 02:
Can you cite to any piece of legislative history or statutory history that suggests that Congress thinks FBI preference eligibles have a whistleblower affirmative defense and can seek

[00:10:13] Speaker 02:
judicial review of whistleblower claims as an affirmative defense.

[00:10:19] Speaker 06:
There is no specific statutory history that says that they should be able to seek a whistleblower affirmative defense.

[00:10:26] Speaker 06:
I mean, that's a question of first impression for this court.

[00:10:29] Speaker 06:
And it's a question of statutory interpretation.

[00:10:31] Speaker 06:
And it's not surprising, because most FBI employees can't go to the MSPP.

[00:10:35] Speaker 06:
So it's not as if Congress in enacting such a- Do you know the numbers on that?

[00:10:39] Speaker 02:
How many FBI- How many preference-eligibles there are?

[00:10:42] Speaker 06:
I do not know the exact percentage but 7701 doesn't just apply to the

[00:10:51] Speaker 06:
FBI preference eligible.

[00:10:52] Speaker 06:
7701 is to all federal employees.

[00:10:55] Speaker 06:
So in enacting 7701, it's not surprising that Congress wasn't saying, here are all the laws that could potentially be violated.

[00:11:03] Speaker 06:
And that's why they have a not in accordance with the law defense, because it's not as though that they could list every single law.

[00:11:10] Speaker 06:
And you can see that in the cases on not in accordance with the law.

[00:11:15] Speaker 06:
If an employer who

[00:11:18] Speaker 06:
Or if an agency has someone take an action that they're not authorized to take, that would not be in accordance with the law.

[00:11:22] Speaker 02:
But that presumes that they didn't intend, by 2303, to create a separate regime for FBI employees.

[00:11:29] Speaker 02:
And by all accounts in the legislative history and the like, it's very clear that Congress understood the FBI to be a different kind of agency than all the civilian agencies.

[00:11:38] Speaker 02:
And they treated it as more like an intelligence community agency, which also, those don't have judicial review, right?

[00:11:45] Speaker 06:
That's correct.

[00:11:46] Speaker 02:
And there was no whistleblower defense, affirmative defense, at all prior to the CSRA, correct?

[00:11:53] Speaker 06:
Yes.

[00:11:53] Speaker 02:
Right?

[00:11:54] Speaker 02:
So the CSRA, at the same time, created 2302, which applied to all the civilian agencies, and created a special regime, which applied to all FBI employees.

[00:12:05] Speaker 02:
Why should we read that more specific statute to be conclusive here of all employees at the FBI, whether or not they're preference eligible?

[00:12:14] Speaker 06:
Because at the time that that system was created in 1978, no FBI employee could bring an independent cause of action before the MSPB.

[00:12:24] Speaker 06:
But when they enacted it, even at that time, when they formed the MSPB, all employees had to go through the Office of Special Counsel.

[00:12:33] Speaker 06:
And only the Office of Special Counsel could bring a whistleblower case to the MSPB.

[00:12:38] Speaker 06:
The Congress could not have possibly been concerned about an individual employee, FBI or otherwise, bringing a whistleblower case before the MSPB because that was not possible.

[00:12:48] Speaker 02:
But civilian people could, once the CRSA was enacted, bring it as an affirmative defense.

[00:12:54] Speaker 06:
Yes, but there's no reason why

[00:12:57] Speaker 06:
the CSRA would have thought to include the small percentage of all federal employees that are preference-eligible veterans at the FBI and specify that in Section 76-1.

[00:13:07] Speaker 02:
I think you shouldn't underestimate how many preference-eligibles there are at the FBI.

[00:13:12] Speaker 02:
I don't think it's in the record, but it's a law enforcement agency which probably has a significant number of preference-eligibles.

[00:13:18] Speaker 02:
We're not talking about one or two percent, are we?

[00:13:21] Speaker 06:
No, but the number I'm comparing it to is the number of all federal employees, which is what 7701 governs.

[00:13:27] Speaker 06:
7701 isn't governing just FBI.

[00:13:28] Speaker 06:
And I think it's also important to note that when the Whistleblower Protection Act was passed in 1989, Congress did an amendment to 2303 and said it had to be

[00:13:41] Speaker 06:
enforced consistent with 1214 and 1221, consistent with those statutes.

[00:13:46] Speaker 02:
Doesn't that argument prove too much though?

[00:13:49] Speaker 02:
Because if you mean consistent with those statutes, those statutes don't distinguish between preference eligible and non-preference eligible.

[00:13:57] Speaker 02:
So if your argument is that

[00:13:59] Speaker 02:
all the rights from 1214 and 1221 have to be applied, then all FBI employees, not just preference eligibles, are entitled to judicial review.

[00:14:09] Speaker 02:
And not even you, I think, are making that argument.

[00:14:12] Speaker 06:
No.

[00:14:12] Speaker 06:
But the argument is not that consistent with 1221 and 1214 would mean that they would get an independent right of action.

[00:14:19] Speaker 06:
That's clearly not at issue here.

[00:14:21] Speaker 06:
And it's clear that they don't get an independent right of action.

[00:14:24] Speaker 06:
But consistent with 1221, and I'm talking about 1221B,

[00:14:27] Speaker 06:
which says that that statute is not to be construed to limit direct appeal rights.

[00:14:31] Speaker 06:
So it's not consistent to construe 2303 to limit direct appeal rights.

[00:14:38] Speaker 06:
Nothing in the whistleblower protection scheme is supposed to limit direct appeal rights to the MSPB.

[00:14:43] Speaker 06:
And 7701 includes affirmative defenses.

[00:14:47] Speaker 02:
So there should not be an exclusion read into 7701.

[00:14:50] Speaker 02:
That's only if we read 2301 as being

[00:14:54] Speaker 02:
a separate but non-exclusive regime at the time it was enacted.

[00:14:59] Speaker 02:
If we read it as I think the legislative history suggests that it was intended to be a separate and exclusive regime for FBI employees, then what happened in the WPA doesn't change that conclusion.

[00:15:11] Speaker 06:
Except for that would be true if this were a question of jurisdiction.

[00:15:15] Speaker 06:
But the MSPB has jurisdiction to review the removal action.

[00:15:19] Speaker 06:
So it's not a question of whether or not Mr. Parkinson can bring a case.

[00:15:24] Speaker 02:
I mean, if he was trying to bring- Let me ask you this.

[00:15:25] Speaker 02:
I understand you're trying to make a jurisdiction between causes of action and jurisdiction and the like.

[00:15:31] Speaker 02:
But hypothetically, if we conclude that 2301 establishes a separate regime, Congress could have done that, right?

[00:15:41] Speaker 02:
They could have said, look.

[00:15:43] Speaker 02:
FBI press firms' eligibility can challenge their removals on any of the grounds, but for whistleblower cases, because they're an intelligence-like agency, we want to create a separate regime and it's only internal.

[00:15:55] Speaker 02:
They could have done that, right?

[00:15:57] Speaker 06:
Yes, and so at best it's silent, which is why there should not be an exception read into MSPB's jurisdiction to exclude this particular affirmative defense.

[00:16:05] Speaker 02:
It's silent except for

[00:16:07] Speaker 02:
the repeated attempts in the last 40 years by certain members of Congress to change that view to enact judicial review for FBI employees.

[00:16:17] Speaker 06:
But that would be for an independent cause of action.

[00:16:18] Speaker 06:
That would be to appeal from an OARM internal process.

[00:16:21] Speaker 06:
That's not for affirmative defense.

[00:16:23] Speaker 05:
Is there a distinction between the scope of the inquiry that you would envision at the MSPB as it relates to an affirmative defense of retaliation

[00:16:33] Speaker 05:
versus the scope of inquiry that would be involved in an individual right of action.

[00:16:39] Speaker 05:
In other words, usually with retaliation claims, the merits of the underlying whistleblowing or the underlying discrimination claim or whatever it is are irrelevant.

[00:16:49] Speaker 05:
The question is whether there was action taken in response to a claim.

[00:16:54] Speaker 05:
Is the fact that that would be the narrow issue that MSP is looking at, does that make a difference?

[00:17:02] Speaker 06:
Yes, because individual right of action claims can be brought for a whole host of adverse personnel actions, whereas a Chapter 75 action can only be brought if there's a removal or suspension of over 14 days.

[00:17:14] Speaker 06:
That's what gives rise to MSPB's jurisdiction.

[00:17:16] Speaker 06:
So it's not as though if the court were to hold in our favor here or uphold the panel decision that there would be FBI-preference eligible veterans being able to come to the MSPB if they're

[00:17:26] Speaker 06:
issued a downgraded performance appraisal in retaliation, for example.

[00:17:31] Speaker 06:
Only if the FBI takes the affirmative action of firing them or suspending them of more than 14 days would the MSPB be then able to examine the relevant laws and statutes associated with that removal.

[00:17:43] Speaker 05:
Well, the government is arguing that one of the dangers of your position is that then we or any court that could review would be getting into the meat of very confidential information.

[00:17:56] Speaker 05:
And I guess my question is, the individual rights of action is the scope of the inquiry into the underlying whistleblower claim broader than it would be at the MSPBA.

[00:18:09] Speaker 06:
I think that would depend on the underlying whistleblower claim, but I think traditionally it would be broader in terms of the retaliatory actions, such as retaliatory performance appraisals, changes in job duties.

[00:18:22] Speaker 06:
I mean, that's a much broader inquiry than just say, is this removal retaliation?

[00:18:28] Speaker 06:
In terms of getting into sensitive issues, there are no sensitive issues in Mr. Parkinson's case, as the government's acknowledged here.

[00:18:37] Speaker 06:
There's no explanation from the Justice Department as to how a whistleblower claim would risk any more sensitive information than simply a removal action.

[00:18:45] Speaker 06:
And here, the DODIG made findings that there was no whistleblower retaliation, certainly to be at issue, which report was certainly to be at issue in a removal case.

[00:18:55] Speaker 06:
And so if you've got a report that has led to firing a preference eligible, that appeal right exists.

[00:19:01] Speaker 06:
And that report should be at issue.

[00:19:04] Speaker 06:
in the MSPB case.

[00:19:05] Speaker 11:
If we were to read the not in accordance with law language from 7701C2C as covering Mr. Parkinson's whistleblower reprisal allegation, then why wouldn't that reading of that language likewise cover all the whistleblower reprisal allegations that are covered in 7701C2B, thereby rendering subsection B superfluous?

[00:19:34] Speaker 06:
because subsection B, according to the government, does not apply to Mr. Parkinson.

[00:19:39] Speaker 11:
And this argument, I think, is significant because... But my question is, as I understand your argument, it hinges on what I would call a broad reading of the language not in accordance with law.

[00:19:51] Speaker 11:
And so therefore, if it covers Mr. Parkinson's whistleblower reprisal allegation, why wouldn't it likewise cover any and all

[00:20:02] Speaker 11:
whistleblower reprisal allegations that can be raised to the MSPB.

[00:20:07] Speaker 06:
Because it would be under Section 7701, which can only apply to adverse action appeals.

[00:20:14] Speaker 06:
Meaning, or only applies to otherwise appealable actions under Chapter 75.

[00:20:18] Speaker 06:
Meaning, if Mr. Parkinson, for example, received a downgraded performance appraisal and wanted to claim that that was retaliation, the MSPB would not have jurisdiction to covet it.

[00:20:27] Speaker 11:
I guess what I'm wondering is, are you reading not in accordance with law to apply when it comes to whistleblower reprisal allegations,

[00:20:36] Speaker 11:
to preference-eligible FBI employees, but doesn't apply to any and every other whistleblower reprisal allegation that can be raised at the MSBB.

[00:20:48] Speaker 11:
So it's kind of a carve-out of what it means to be not in accordance with law, at least your interpretation of not in accordance with law.

[00:20:57] Speaker 06:
Not exactly, because the Section 77-1C2B is based on

[00:21:04] Speaker 06:
2302B.

[00:21:05] Speaker 06:
And the government wants it both ways.

[00:21:07] Speaker 06:
I mean, the government wants to say that 2302B does not apply to Mr. Parkinson, but it's specific.

[00:21:13] Speaker 06:
And so then, because it's specific, then C2C does not, he cannot raise a defense under C2C either.

[00:21:18] Speaker 06:
But that doesn't make sense, because if 2302B does not apply to Mr. Parkinson or FBI preference eligibles, then certainly C2C should, and it's not in specific general relation.

[00:21:30] Speaker 06:
If 2302B does apply to Mr. Parkinson,

[00:21:32] Speaker 06:
then he should be able to raise an affirmative defense there.

[00:21:35] Speaker 06:
But he would not be able to raise it for all whistleblower allegations.

[00:21:38] Speaker 06:
He would only be able to raise it in the context of an action where the MSPB already has jurisdiction under Chapter 75.

[00:21:44] Speaker 06:
So you can't say specific general, and then the result is there's no statute that covers you.

[00:21:53] Speaker 06:
If C2B applies, then C2B applies.

[00:21:58] Speaker 06:
If C2C applies, then C2C applies.

[00:22:00] Speaker 06:
C2B is specific and then C2C doesn't apply so you're out of luck.

[00:22:05] Speaker 03:
Can I ask you a question?

[00:22:06] Speaker 03:
You said this was a case of first impression and yet it's been 40 years almost since 1978.

[00:22:13] Speaker 03:
Can you tell us anything about the numbers of 2303 claims by preference eligible FBI employees and the numbers of adverse action appeals by FBI

[00:22:28] Speaker 03:
preference eligible that tells us whether to make something of the fact that this appears not to have come up before?

[00:22:35] Speaker 06:
I don't have specific numbers.

[00:22:37] Speaker 06:
I know that there are other cases like Robert's VDOJ that say that there's no cause of action under 2303.

[00:22:44] Speaker 06:
I think also after 2303 was passed, it wasn't implemented until much later.

[00:22:52] Speaker 06:
But that's still going 20 years.

[00:22:54] Speaker 06:
Right.

[00:22:55] Speaker 06:
And so I don't know that, you know,

[00:22:59] Speaker 06:
There are not even a lot of FBI preference eligibles who bring MSPB appeals.

[00:23:03] Speaker 06:
I mean, the course of action factually that has to happen for this issue to arise is rare in the sense that you have to have an FBI preference eligible who is fired or removed for more than 14 days who also believes he was reprised against for whistleblowing.

[00:23:20] Speaker 06:
And I think that that simply has not come up in the course of MSPB litigation.

[00:23:26] Speaker 06:
I mean, and it did arise in Van Lanker.

[00:23:28] Speaker 06:
that factual scenario in Van Lanker did arise.

[00:23:31] Speaker 06:
So that was, I think, the first time the MSPB that it arose.

[00:23:35] Speaker 10:
Counsel, you stated earlier in response to a question that you knew of no statute that specifically authorized an affirmative defense before the MSPB in this kind of a case.

[00:23:51] Speaker 10:
Do you know of any statute that specifically precludes an affirmative defense in this kind of a case?

[00:23:58] Speaker 06:
No.

[00:23:59] Speaker 06:
And the legislative history indicates that Congress wanted to preserve preference-eligible appeal rights.

[00:24:06] Speaker 10:
Is it your position that, in fact, the statutes don't answer this question?

[00:24:13] Speaker 06:
I think that it's a question of statutory interpretation.

[00:24:17] Speaker 06:
I don't think that the language is ambiguous.

[00:24:19] Speaker 06:
I think it unambiguously provides for an affirmative defense of not in accordance with the law.

[00:24:25] Speaker 10:
But not in those specific terms.

[00:24:28] Speaker 06:
No, not in the specific terms of preference eligible veterans at the FBI can raise an affirmative defense of whistleblower retaliation.

[00:24:37] Speaker 06:
That's a question for this court to answer.

[00:24:40] Speaker 10:
Is there any broader theory that might support the need for an affirmative defense other than an argument that the statutes could be read one way or the other?

[00:24:50] Speaker 10:
For example, there is a presumption

[00:24:54] Speaker 10:
in favor of veterans.

[00:24:57] Speaker 10:
Does any of that play into your case?

[00:25:00] Speaker 06:
I think most of the statutory interpretation presumptions would play in, including the presumption that veterans' rights are viewed as fairly sacrosanct and that statutes should be read

[00:25:13] Speaker 06:
in favor of veterans and that would include this court has acknowledged MSPB appeals should be read in favor or statutes that govern the MSPB that give veterans rights should be read in favor of veterans as our amicus pointed out.

[00:25:30] Speaker 06:
I think also the theory that

[00:25:40] Speaker 06:
not in accordance with the law is a separate affirmative defense, which this court has acknowledged, and that if you prove not in accordance with the law, then you need not show another affirmative defense, shows that not in accordance with the law is not some throwaway language, that it provides a separate course of action.

[00:25:59] Speaker 06:
And finally, and I think most importantly, Congress should not read exemptions

[00:26:05] Speaker 06:
into the Civil Service Reform or this court should not read exemptions into the Civil Service Reform Act that are not expressly put there.

[00:26:12] Speaker 06:
And that's this court and its Supreme Court precedent.

[00:26:15] Speaker 06:
If Congress wanted to exempt affirmative defenses for preference eligible veterans, Congress could have done that and Congress did not.

[00:26:23] Speaker 07:
Thank you.

[00:26:37] Speaker 08:
And Congress enacted the CS.

[00:26:41] Speaker 04:
Let's pick up right where your opposing counsel ended on the question of veterans' preferences.

[00:26:49] Speaker 04:
In your supplemental brief, you make an argument that has weight, citing King v. St.

[00:27:02] Speaker 04:
Vincent and saying Hudgens is

[00:27:05] Speaker 04:
They're seeking too much out of Hutchinson.

[00:27:08] Speaker 04:
But you don't stop there.

[00:27:10] Speaker 04:
You say even if this canon were applicable, it would require the court to hold the Board of Review whistleblower reprisal claim is more favorable to veterans than equivalent to the Department of Justice review.

[00:27:23] Speaker 04:
There is no basis to reach that holding as a legal proposition.

[00:27:27] Speaker 04:
My problem with that is the GAO report, which is cited in the other supplemental and upon which the reserve officers face their argument, which says DOJ took from two to 10.6 years to resolve the four complaints we reviewed that DOJ adjudicated, and they didn't provide complainants

[00:27:55] Speaker 04:
with estimates of what to expect.

[00:27:57] Speaker 04:
And that was out of, I think, 62 complaints.

[00:28:02] Speaker 04:
Why don't those statistics provide a basis for constraining the statute in favor of Mr. Parkinson?

[00:28:09] Speaker 04:
As opposed to going past your legal argument, this is your additional argument.

[00:28:16] Speaker 08:
I understand.

[00:28:16] Speaker 08:
And I would first say that I have read the GAO report, and I would also note that DOJ

[00:28:23] Speaker 08:
recognized the issues that were raised by GAO and provided an indication that they were going to try to improve in the administration of FBI whistleblower claims.

[00:28:33] Speaker 08:
However, that's not really the relevant issue here, because it's Congress who has to change the law and provide for a different procedure to apply to FBI employees.

[00:28:43] Speaker 08:
And I would also note that with respect to the veterans preference canon, we're not disputing that 7511, that 5 USC 7511,

[00:28:53] Speaker 08:
which gives FBI preference eligible the right to bring an appeal of an adverse action is a veteran's benefit statute.

[00:29:02] Speaker 08:
However, section 23 is not a veteran's benefit statute, nor is section 7701.

[00:29:06] Speaker 08:
So section 7701, this court has established, is subject to Chevron deference to the MSPB.

[00:29:17] Speaker 08:
Similarly, section 2303 would provide for Chevron deference to DOJ, to whom

[00:29:21] Speaker 08:
authority was delegated to promulgate regulations implementing the FBI whistleblower provisions.

[00:29:27] Speaker 08:
I would point out, however, that we know that when the CSRA was enacted in 1978, and this is stated by the Supreme Court in Fausto, Congress comprehensively overhauled the civil service system.

[00:29:41] Speaker 08:
At that time, Congress enacted 5 USC 23 OT,

[00:29:45] Speaker 08:
section 2302, the general whistleblower protection provision, section 2303, the provision that applies to the FBI, and section 7701, which is the statute that's really at issue here.

[00:29:59] Speaker 08:
And we also know that enacting 7701C2, Congress specifically addressed whether and to what extent whistleblower retaliation affirmative defenses may be raised.

[00:30:08] Speaker 08:
In 7701C2B, Congress specifically cross-referenced a whistleblower defense that is available to certain employees, but not to FBI employees.

[00:30:17] Speaker 08:
I know that Mr. Parkinson has attempted to rely on Section C2C, which states that there are affirmative defenses based upon actions that are not in accordance with law,

[00:30:29] Speaker 08:
one member of the court pointed out, if we were to read 2303 into C2C, it would effectively render subsection B superfluous.

[00:30:37] Speaker 08:
And this court, in the handy decision, has already said that.

[00:30:39] Speaker 03:
Can I just ask you, it seems to me there's at least a potential answer to the C would override B, which is that B is at least quite explicit.

[00:30:52] Speaker 03:
And the argument that you're making about C not applying

[00:30:56] Speaker 03:
is that there is a kind of negative implication that is an implication from B by the omission of 2303 which ousts the applicability of the highly general language of C. That at least is different from saying an expressed reference in B to 2302 ousts the more general language.

[00:31:21] Speaker 08:
Well, our argument is that the express omission or the omission of 2303.

[00:31:25] Speaker 08:
Express omission is a difficult one.

[00:31:27] Speaker 08:
You're right.

[00:31:27] Speaker 08:
That's not it.

[00:31:28] Speaker 03:
I should not have misspoke.

[00:31:30] Speaker 08:
No, but this is kind of the issue, isn't it?

[00:31:33] Speaker 08:
Congress enacted 7701C2 at the same time it enacted sections 2302 and 2303.

[00:31:39] Speaker 08:
Had Congress wanted to provide an affirmative defense of whistleblower,

[00:31:43] Speaker 08:
retaliation for FBI employees.

[00:31:45] Speaker 08:
It could have said 2302 and 2303.

[00:31:48] Speaker 08:
It did not do that.

[00:31:49] Speaker 08:
It provided for an exclusive remedy in section 2303.

[00:31:53] Speaker 08:
And as the court, and I think Mr. Parkinson's counsel.

[00:31:58] Speaker 03:
You have to make the argument that it's exclusive, because it doesn't say it's exclusive.

[00:32:02] Speaker 03:
This is all about an implication of a specific remedial regime ousting a more general, otherwise textually available one.

[00:32:11] Speaker 08:
Correct.

[00:32:12] Speaker 08:
But if you look at the language of 2303, it makes it clear that authority for propagating regulations, implementing the prohibitive personnel practice provision on behalf of the FBI is delegated to the Attorney General.

[00:32:30] Speaker 08:
It also states that authority to provide for enforcement is provided to the President

[00:32:38] Speaker 08:
And then it also goes on to address 1214 and 1221.

[00:32:42] Speaker 08:
There is no right to judicial review there.

[00:32:44] Speaker 08:
In fact, Mr. Parkinson's counsel acknowledged that several courts, the Runkel Court and the Mukasey Court, have already found that 2303 does not provide a basis for a separate APA-type appeal.

[00:32:58] Speaker 01:
Let me ask you what I think is a difficult question.

[00:33:02] Speaker 01:
Suppose an FBI supervisor fires an agent for engaging in whistle-blown.

[00:33:08] Speaker 01:
And the agent takes his case to the MSPB.

[00:33:12] Speaker 01:
Is the MSPB supposed to say, yes, he can be fired for whistleblowing?

[00:33:18] Speaker 01:
Or how is it supposed to handle that?

[00:33:21] Speaker 01:
It seems to be a very odd thing for the MSPB under those circumstances to ignore the reason for the agent's firing.

[00:33:30] Speaker 08:
That would be an odd thing.

[00:33:32] Speaker 08:
That obviously is not the case here.

[00:33:34] Speaker 08:
I'm not sure how that type of case would be handled.

[00:33:37] Speaker 08:
But we have to remember that 2303 sets up.

[00:33:39] Speaker 01:
You're not sure how that will be handled?

[00:33:41] Speaker 08:
I mean, I assume our position would be that the employee would not be able to raise whistleblowing as an affirmative defense.

[00:33:53] Speaker 08:
Whether or not the actual reason for, if it were undisputed that the reason for firing him

[00:33:59] Speaker 08:
was for whistle-blowing, it's a possibility that the MSPB would be in a position to rule in its favor.

[00:34:04] Speaker 01:
However, there would also be... It seems to me you're creating difficulties for yourself because you're saying in some cases maybe they could consider a whistle-blowing defense and in some cases they couldn't.

[00:34:15] Speaker 08:
Well, I think that the circumstances that Your Honor is suggesting obviously are not an issue here.

[00:34:23] Speaker 08:
I find it hard to believe that such a case would ever arise.

[00:34:26] Speaker 08:
However, if such a case did arise, our position would be that... I don't think it's hard to believe that such a case would arise.

[00:34:32] Speaker 01:
I mean, FBI agents are supposed to maintain confidentiality.

[00:34:35] Speaker 01:
There'd be a lot of concern within the FBI if an agent went out and even within the FBI started going over his superior's head to make allegations about whistleblowing.

[00:34:47] Speaker 01:
That person could be viewed as a real troublemaker.

[00:34:49] Speaker 01:
So I don't think it's a far-fetched case.

[00:34:52] Speaker 08:
Well, our position would be that were that to happen, it's possible.

[00:34:56] Speaker 08:
For instance, if the employee was fired for disclosing classified information and wanted to defend that by saying, well, that means I was fired for disclosing classified information.

[00:35:14] Speaker 08:
I know I wasn't allowed to, but that was prohibited.

[00:35:16] Speaker 08:
I mean, that would not be the type of affirmative defense he could bring.

[00:35:22] Speaker 08:
That type of claim has to be adjudicated under Section 2303.

[00:35:25] Speaker 02:
I mean, doesn't your argument suggest that if an employee believes that he has been subject to whistleblower retaliation under your view of 2303, his sole remedy is to go the internal agency route?

[00:35:37] Speaker 02:
If he wants to challenge his removal on separate grounds, he can go to the MSPB.

[00:35:42] Speaker 08:
That's correct.

[00:35:43] Speaker 08:
And a member of the court asked whether there are examples of FBI employees bringing appeals of adverse actions to the MSPB.

[00:35:57] Speaker 08:
And there are many examples.

[00:35:59] Speaker 08:
I mean, I found five or six where the MSPB has considered whether or not an FBI veteran's preference eligible was properly removed for offenses such as

[00:36:12] Speaker 08:
misusing a position to influence a private dispute for unauthorized use of government vehicles, removing classified documents.

[00:36:26] Speaker 10:
But none of that's really relevant to the question of whether there is an affirmative defense allowable.

[00:36:34] Speaker 10:
Help me understand this.

[00:36:36] Speaker 10:
Assuming for the moment that the laws, as you described,

[00:36:42] Speaker 10:
Let's hypothesize, take it out of the preference eligible category.

[00:36:48] Speaker 10:
Let's hypothesize an FBI agent who is discharged by a supervisor on the grounds that that agent has not behaved properly.

[00:37:01] Speaker 10:
Turns out the agent in fact had

[00:37:04] Speaker 10:
ratted out that supervisor in an earlier complaint because of the supervisor's illegal conduct according to the agent.

[00:37:13] Speaker 10:
Now, as I understand it, the issue of whether there is a whistleblower defense under the general statutory framework, not preference eligible now, goes to the FBI.

[00:37:27] Speaker 10:
Is that right?

[00:37:29] Speaker 10:
That's correct.

[00:37:30] Speaker 10:
And somewhere up in the FBI, that

[00:37:33] Speaker 10:
that case will be reviewed.

[00:37:36] Speaker 10:
Where in the FBI is that?

[00:37:38] Speaker 08:
That process goes from to the OPR, the Office of Professional Responsibility at the FBI, and appeals from there go to the DRB.

[00:37:48] Speaker 08:
I forget what the acronym stands for.

[00:37:50] Speaker 08:
It's Defense Discipline Review Board.

[00:37:55] Speaker 08:
That is a completely separate process from the process for appealing

[00:38:00] Speaker 08:
on the grounds of retaliation for whistleblowing.

[00:38:03] Speaker 08:
That process occurs only at the Department of Justice.

[00:38:08] Speaker 08:
So even a non-preference- Stay with my hypothetical.

[00:38:12] Speaker 10:
It would go up through this process you described.

[00:38:17] Speaker 10:
So we have the FBI in effect.

[00:38:20] Speaker 10:
Somebody's complained against the behavior of the FBI.

[00:38:23] Speaker 10:
Presumably his complaint was dismissed somewhere.

[00:38:28] Speaker 10:
That is, he didn't get a remedy for his whistle-blowing.

[00:38:32] Speaker 10:
So he appeals it, he or she appeals it up into the FBI, and the FBI now is going to judge whether it had made the proper decision earlier.

[00:38:41] Speaker 10:
Is there an appeal from that process?

[00:38:44] Speaker 08:
There is no judicial review of that process.

[00:38:47] Speaker 10:
The FBI gets to judge its own behavior, and there's no appeal.

[00:38:53] Speaker 08:
That's correct, because under the CSRA, accepted service employees of the FBI are not permitted to appeal, are not permitted judicial review of FBI review of misconduct.

[00:39:08] Speaker 08:
And that's consistent with the Supreme Court's decision in Falstow.

[00:39:11] Speaker 10:
Now, for preference eligible FBI agents, Congress has punched a hole in that routine and said, ah, you can go to the MSPB.

[00:39:22] Speaker 08:
That is correct.

[00:39:24] Speaker 10:
To your knowledge, is there any rule or statute that precludes an affirmative defense before the MSPB?

[00:39:35] Speaker 08:
Yes.

[00:39:35] Speaker 08:
7701C2C.

[00:39:36] Speaker 08:
7701C2C, I mean C2B, specifically states that whistleblowing under 2302 may be raised as an affirmative defense.

[00:39:48] Speaker 08:
It does not mention whistleblowing under 2303.

[00:39:52] Speaker 08:
And the in accordance with law provision also doesn't apply, much like it doesn't apply in other cases for different reasons, like USERRA.

[00:40:00] Speaker 08:
You can't raise USERRA as an affirmative defense.

[00:40:02] Speaker 10:
But subsection C gets to play a role also, doesn't it?

[00:40:06] Speaker 10:
It does play a role.

[00:40:06] Speaker 10:
Your argument before was that subsection C doesn't play a role because B has to be read first.

[00:40:14] Speaker 10:
But one can make the argument that B and C have to be read together.

[00:40:19] Speaker 08:
That is correct.

[00:40:21] Speaker 08:
If I gave the impression that I didn't think B and C had to be read together, I misstated it.

[00:40:28] Speaker 08:
I am just trying to emphasize that C to B expressly references whistleblowing, and it applies the affirmative defense only to whistleblowing under 2302.

[00:40:37] Speaker 08:
When read in conjunction with C, which provides for in accordance with law, it would render

[00:40:45] Speaker 08:
Subsection B, Superfluous, if C also addressed whistleblowing.

[00:40:52] Speaker 03:
Could the president under 2303C declare that the board may review in an adverse action appeal the charge of violation of 2303?

[00:41:06] Speaker 08:
That's highly unlikely, because Congress gives the MSPB jurisdiction over

[00:41:14] Speaker 08:
adverse appeals under the CSRA.

[00:41:16] Speaker 03:
I don't think the president has... Your argument that C, 7701C2C, is unavailable is that it is ousted by the regime of 2303.

[00:41:29] Speaker 03:
That regime gives the president control over the remedial side of things.

[00:41:38] Speaker 03:
doesn't even have to limit, the President can give review to the Office of Special Counsel, why can't the President under 2303C give review to the Board?

[00:41:47] Speaker 08:
I'm not so sure that the President can give review to the Office of Special Counsel.

[00:41:50] Speaker 08:
Congress, in the amendment to 2303 that was enacted in December, gave

[00:41:57] Speaker 08:
FBI whistleblowers the right to make disclosures to OSCE, but OSCE doesn't have the right to consider any whistleblower retaliation claims by FBI employees.

[00:42:08] Speaker 03:
2303C gives the president, as I read it, complete control over the remedial side of 2303.

[00:42:15] Speaker 03:
Why can't the president give it anywhere he wants?

[00:42:19] Speaker 08:
I guess an argument could be made and litigated as to whether or not the president has the authority to provide the MSPB with jurisdiction over a particular type of claim.

[00:42:31] Speaker 08:
But the legislative history of 2303 and 22, as well as the CSRA read as a whole, makes it clear that FBI whistleblower claims are to be

[00:42:44] Speaker 08:
considered internally.

[00:42:45] Speaker 03:
I mean, with the legislative history... Except for 2303C, which doesn't say anything about internal.

[00:42:54] Speaker 03:
Well, Congress said... President Clinton, when he delegated, the authority did, but the statute doesn't.

[00:43:00] Speaker 08:
And Congress, when it enacted the CSRA in 1978, also stated

[00:43:07] Speaker 08:
that it did not want whistleblower claims by FBI employees to be considered outside the agency.

[00:43:12] Speaker 03:
This is Congress stating this somewhere outside the statutes at large.

[00:43:18] Speaker 03:
In the congressional record.

[00:43:21] Speaker 03:
Otherwise delegating complete discretion to the president.

[00:43:24] Speaker 03:
That's correct.

[00:43:25] Speaker 01:
Let me ask you about the Postal Service employees who are also not subject

[00:43:31] Speaker 01:
to the whistleblower statute 2302 and yet the MSPB in two cases in Butler and Mack is held that they can assert a whistleblower defense when they appeal to the MSPB.

[00:43:45] Speaker 01:
Are those cases incorrectly decided?

[00:43:48] Speaker 01:
What is the government's position about that?

[00:43:50] Speaker 08:
The government's position is that

[00:43:52] Speaker 08:
Those cases, we have not addressed whether they're incorrectly decided, but they're not really relevant because the Postal Service did not have a provision like 2303 that provided for a separate remedy for adjudicating whistleblower claims by Postal Service employees.

[00:44:07] Speaker 08:
Here, Congress, in 1978,

[00:44:10] Speaker 08:
Debated extensively whether FBI employees should have any rights under the CSRA and it was finally concluded that the only rights FBI employees would have are the specific rights listed in 2303 and the specific remedies and processes listed in 2303 and I would just note

[00:44:28] Speaker 08:
I would ask that the court keep in mind that in the Fausto decision, Supreme Court considered under the original CSRA whether accepted service employees had the pre-existing rights that they'd had before the CSRA was enacted.

[00:44:41] Speaker 08:
And they said, no, CSRA was a complete overhaul.

[00:44:45] Speaker 08:
Accepted service employees have no rights.

[00:44:48] Speaker 08:
Of course, that led to an amendment in 1990, the civil service due process amendments.

[00:44:53] Speaker 08:
But that has not happened with respect to FBI employees.

[00:44:56] Speaker 08:
With respect to FBI employees, the law has been consistent all along.

[00:44:59] Speaker 08:
And I would also point out, Mr. Parkinson argues that 2303, when it was enacted under the Whistleblower Protection Act, specifically listed that the president should provide for enforcement in accordance with 1214 and 1221.

[00:45:16] Speaker 08:
Well, that's not looking at the entire provision.

[00:45:19] Speaker 08:
It's saying, should enforce

[00:45:22] Speaker 08:
Enforcement should be consistent with 12.14 and 12.21 as applicable.

[00:45:28] Speaker 08:
So to the extent that 12.14 and 12.21 make reference to affirmative defenses under 23.02, that has no application under 23.03.

[00:45:37] Speaker 03:
Are there any portions of 12.14 and 12.21 that are literally applicable to FBI employees?

[00:45:44] Speaker 03:
No.

[00:45:44] Speaker 03:
So what's the word applicable?

[00:45:50] Speaker 03:
I understand consistent with, you read it as, to the extent you feel like it in harmony with the general procedure.

[00:45:58] Speaker 03:
But I'm not sure that the word applicable is doing it.

[00:46:00] Speaker 08:
Well, what the president can decide is which provisions of 12.14 and 12.21 are applicable, and then come up with provisions that are consistent with those particular provisions.

[00:46:12] Speaker 00:
The more I listen, I don't want to interrupt you, but I want to raise another question.

[00:46:16] Speaker 00:
Because the more I listen to these arguments,

[00:46:19] Speaker 00:
the more it seems to me that maybe we aren't really focusing on the most troublesome aspect of the way this is working out.

[00:46:28] Speaker 00:
Maybe we don't have to decide whether the Justice Department could say, we don't want the OSC investigating the FBI.

[00:46:37] Speaker 00:
We'll do it ourselves.

[00:46:39] Speaker 00:
We hear the stories of it takes 10 or 12 years for the Justice Department to get around adjudicating

[00:46:47] Speaker 00:
that which has been entrusted to it, maybe we don't have to decide in the abstract whether the same entity of government can be both defendant and judge as to the same person but in a different tribunal.

[00:47:05] Speaker 00:
Aren't we, in the way that it's been working out, now approaching something so fundamental, something so profound as a matter of

[00:47:17] Speaker 00:
let's call it equal protection, that we must take a look at not so much as what's been written, but as to how it's working and whether, in fact, it's been working the way it was intended, which is perhaps comprehensible enough.

[00:47:36] Speaker 00:
Keep the OSC out of the FBI.

[00:47:39] Speaker 00:
We're the investigators, not them.

[00:47:42] Speaker 00:
But it does seem, from the few horror stories in the briefs,

[00:47:47] Speaker 00:
that there are some fundamental flaws, maybe so fundamental, but so rare, perhaps, that they didn't come up at the time the statute was being revised and enacted.

[00:48:03] Speaker 00:
But as I listened to all of the arguments in all of the debates, we know that whichever side prevails there is.

[00:48:14] Speaker 00:
a basic flaw in how it's working out.

[00:48:16] Speaker 00:
So basic, again so fundamental that I repeat that perhaps there are constitutional issues that need remedy and that the court therefore has an obligation to look at how it's working rather than whether the statute was entitled to have been enacted.

[00:48:37] Speaker 00:
What's your answer to that?

[00:48:40] Speaker 08:
My answer to that is that

[00:48:42] Speaker 08:
The issue in this case is whether 7701C2 provides affirmative defense of whistleblowing retaliation before the MSPB.

[00:48:50] Speaker 00:
I don't know.

[00:48:51] Speaker 00:
The issue is whether, in fact, justice can be achieved on that theory with the experience of the occasions when it doesn't appear to be achieved.

[00:49:02] Speaker 08:
I think the issue that the court raises is whether or not Congress should have, between 1978 and now,

[00:49:12] Speaker 08:
adopted an amendment to 2303 or any other aspect of the Civil Service Reform Act that would provide for more expeditious or somehow different review of FBI whistleblower claims by the Department of Justice.

[00:49:31] Speaker 01:
What happens in

[00:49:33] Speaker 01:
a 2303 investigation.

[00:49:36] Speaker 01:
Is it an investigation of the supervisor who acted improperly or is it an investigation of the employee's right to be reinstated?

[00:49:46] Speaker 01:
What happens in the course of those investigations?

[00:49:49] Speaker 01:
To which of those two points or both are those investigations directed?

[00:49:55] Speaker 08:
It's primarily to the

[00:49:56] Speaker 08:
employees claim that he or she was retaliated against for protected whistleblowing.

[00:50:03] Speaker 01:
So as a result of that process, the employee could be reinstated?

[00:50:06] Speaker 08:
Yes.

[00:50:07] Speaker 08:
I mean, the regulations promulgated under the authority of 2303 provide for reinstatement, back pay, attorney's fees, potentially consequential damages.

[00:50:19] Speaker 08:
The analysis that the regulations provide for are somewhat similar to the

[00:50:25] Speaker 08:
to 1221, and that the inquiry is whether or not there was a protective disclosure made, whether it was a contributing factor in the misconduct or personnel action that was taken, and then whether or not the FBI can show that there was clear and convincing evidence that it would have taken the action anyway.

[00:50:46] Speaker 08:
That is very similar to the analysis of this court and the MSPB apply under section 1221, whether it be in an IRA case or

[00:50:53] Speaker 08:
an affirmative defense case.

[00:50:55] Speaker 08:
I think earlier Mr. Parkinson's counsel was asked whether or not the process that applies in looking at affirmative defenses under 7701 is similar to the process that is used under 1221.

[00:51:07] Speaker 08:
And the answer is yes.

[00:51:09] Speaker 08:
This court, when considering affirmative defenses under 7701C2,

[00:51:13] Speaker 08:
looks to 1221 to come up with the framework for analysis, contributing factor, predictive disclosure, whether there's clear and convincing evidence.

[00:51:22] Speaker 04:
I want to follow up on what I think was Judge Newman's question.

[00:51:28] Speaker 04:
And that is, supposing instead of four of 62 complaints, zero had been resolved.

[00:51:36] Speaker 04:
Would your answer be the same to her?

[00:51:39] Speaker 08:
I think it would.

[00:51:39] Speaker 08:
I think that would have to be a different type of lawsuit.

[00:51:42] Speaker 08:
To the extent that if the process set up by the president suffers from, or the regulations set up by the attorney general or the process set up by the president suffers from a serious constitutional flaw, then that might be the grounds for a separate suit.

[00:52:00] Speaker 08:
But that is not what we're dealing with here.

[00:52:02] Speaker 08:
What we're dealing with here is whether or not the CSRA permits

[00:52:06] Speaker 08:
FBI whistleblowers to raise whistleblower retaliation as an affirmative defense under 7701C2.

[00:52:14] Speaker 10:
So... And we might conclude that it does because of the basic issues being raised by Judge Newman and others.

[00:52:23] Speaker 10:
That is to say, we may want to construe the statutes to avoid a constitutional flaw.

[00:52:30] Speaker 10:
Wouldn't that make sense?

[00:52:32] Speaker 08:
I don't think that would make sense because

[00:52:34] Speaker 08:
I'll just raise the Bush v. Lucas case.

[00:52:37] Speaker 08:
In that case, an employee raised whistleblowing as a defense to his firing.

[00:52:50] Speaker 08:
This was pre-CSRA.

[00:52:51] Speaker 08:
And the court said under the civil service structure that was in place then, he was entitled to some sort of relief.

[00:52:58] Speaker 08:
He, however, also thought that he should be entitled to some sort of remedy

[00:53:03] Speaker 08:
against the individuals who had actually taken the action against him under a Bivens theory.

[00:53:09] Speaker 08:
And the court said, regardless of whether there's a Bivens theory out there, the civil service statute is comprehensive and it's meant to be exclusive.

[00:53:19] Speaker 08:
We cannot grant that Bivens relief.

[00:53:22] Speaker 08:
I think the court should hesitate to do such a thing in this case either because, as I've stated, the CSRA is a comprehensive statute, and court after court has

[00:53:32] Speaker 08:
construe it not to allow actions outside the specific processes included in the statute, even when the individual has no recourse.

[00:53:45] Speaker 08:
For instance, in CIA employees.

[00:53:47] Speaker 10:
I think, counsel, you're missing a part of the point.

[00:53:50] Speaker 10:
At least, Diven's remedy is not designed to avoid constitutional flaws.

[00:53:58] Speaker 08:
It's a Fourth Amendment type claim.

[00:54:01] Speaker 10:
The question here is, is there a problem in this basic structure?

[00:54:07] Speaker 08:
No, because it's up to Congress to decide whether or not 2303 is working the way it had intended when it enacted the CSRA in 1978.

[00:54:22] Speaker 08:
And as Judge Hughes pointed out,

[00:54:24] Speaker 08:
amended it numerous times over the last 40 years and has never changed the process.

[00:54:29] Speaker 09:
But the fact that there is a separate process under 2303 for FBI agents with respect to whistleblowing doesn't necessarily mean that that is exclusive and exclusive to the point of preventing

[00:54:49] Speaker 09:
a preference eligible like Mr. Parkinson from asserting an affirmative defense in a situation where he has a clear and express, congressionally approved right to appeal to the MSPB.

[00:55:04] Speaker 09:
I mean, it seems to me that you're depriving him of a right to assert an affirmative defense, which is a fundamental

[00:55:16] Speaker 09:
This is sort of a due process sort of argument based on an implication that because there's a separate provision set up for whistleblowing for all other FBI agents, that somehow deprives preference eligible FBI agents of a right that they should be entitled to assert based upon their right of appeal to the MSPB.

[00:55:43] Speaker 08:
Respectfully, Your Honor.

[00:55:46] Speaker 08:
Neither FBI preference eligible nor any other employee of the federal government has a right to any sort of review that Congress has not expressly provided them.

[00:55:57] Speaker 08:
I understand that Congress has expressly provided veterans preference eligible FBI employees with the right to appeal the adverse actions to the MSPB.

[00:56:07] Speaker 08:
However, our argument is that that did not include the right to raise whistleblower

[00:56:12] Speaker 08:
retaliation is an affirmative defense under 7701C2 because 2303 provides a specific remedy for all FBI employees.

[00:56:21] Speaker 08:
Congress was clear about that when they enacted the law in 1978.

[00:56:24] Speaker 09:
But when you say all FBI employees, again, you're arguing that that's exclusive, that it excludes the right to assert the affirmative defense.

[00:56:35] Speaker 08:
It does exclude the right to assert the affirmative defense.

[00:56:38] Speaker 09:
Congress doesn't say that explicitly.

[00:56:40] Speaker 08:
No.

[00:56:42] Speaker 08:
Even Mr. Parkinson agrees that it does not provide for judicial review.

[00:56:47] Speaker 01:
Before you sit down, let me ask you one other question.

[00:56:50] Speaker 01:
And suppose we have a situation that Judge Newman and Judge Wallach are concerned about, where the FBI is not processing these whistleblower complaints in the FBI process appropriately.

[00:57:05] Speaker 01:
Does the MSPB, for example, under those circumstances, have the authority to stay its hand

[00:57:11] Speaker 01:
in the adverse action appeal and keep the employee in his or her job pending the outcome of the FBI proceeding?

[00:57:23] Speaker 08:
I do not think they have the right to do that.

[00:57:26] Speaker 08:
But I am not certain they are.

[00:57:30] Speaker 08:
I mean, unless and until the adverse action is overturned, then the person is subject to whatever discipline was imposed.

[00:57:40] Speaker 01:
Even if it takes five years.

[00:57:43] Speaker 03:
Yes.

[00:57:45] Speaker 03:
Can I ask you, do you have a view about whether the December 2016 statute applies to this case?

[00:57:56] Speaker 08:
Our position would be that it would not be retroactive because it provided a new set of rights to FBI whistleblowers.

[00:58:04] Speaker 08:
They are now allowed to make protected disclosures to entities that they were not allowed to before.

[00:58:10] Speaker 08:
is not just a clarification.

[00:58:11] Speaker 08:
It seems to be a new set of rights that would not apply retroactively.

[00:58:15] Speaker 08:
But it's not really relevant in this case because... Well, it might be.

[00:58:17] Speaker 03:
We're talking about an inference from a structure.

[00:58:21] Speaker 03:
Part of the pre-December 2016 structure was that both

[00:58:27] Speaker 03:
The disclosures and the remedies were internal to the DOJ.

[00:58:31] Speaker 03:
Now the first half is not true.

[00:58:33] Speaker 03:
So it seems to me, I guess I'm curious, whether we have a case in which we need to decide it on the assumption that both are true or that only one is true.

[00:58:44] Speaker 08:
Well, we would take the position that does not apply retroactively, but even if it does,

[00:58:48] Speaker 08:
The mere fact that Congress has allowed the OSC to be the recipient of a protected disclosure does not mean that the process that was set up under 2303 has somehow been discounted or negated.

[00:59:07] Speaker 08:
Thank you.

[00:59:22] Speaker 06:
I'd like to just address the OARM process under 2303.

[00:59:27] Speaker 06:
That's not an equal remedial scheme, and certainly not for a removal.

[00:59:34] Speaker 06:
For example, for someone bringing a case before OARM, there's no right to a hearing, an evidentiary hearing.

[00:59:39] Speaker 06:
In a Chapter 75 case, Mr. Parkinson has a right to a hearing.

[00:59:44] Speaker 06:
The MSPB has subpoena power and can issue subpoenas at OARM.

[00:59:49] Speaker 06:
Those rights don't exist.

[00:59:50] Speaker 06:
This is not an equal scheme.

[00:59:52] Speaker 06:
And 2303 could not provide Mr. Parkinson with a remedy for his removal, and certainly not the speedy remedy that the MSPB is intended to provide.

[01:00:03] Speaker 02:
What do you mean they can't provide him with a remedy for his removal?

[01:00:07] Speaker 02:
Don't the FBI regulations precisely provide that if a complaint is investigated and found to be valid, it can be, reinstatement can be ordered?

[01:00:18] Speaker 06:
Reinstatement can?

[01:00:20] Speaker 02:
I mean, it does not provide a... It's all kinds of fees and the like.

[01:00:24] Speaker 02:
Don't the procedures in the FBI regulations mirror pretty precisely the procedures in 1214 and 1221, just performed by different entities?

[01:00:33] Speaker 06:
No.

[01:00:34] Speaker 06:
The OIM process does not mirror precisely.

[01:00:37] Speaker 06:
There's no evidentiary right to a hearing.

[01:00:41] Speaker 06:
The adjudicator is the same parent federal agency that is the defendant.

[01:00:48] Speaker 06:
And it's not the same right as an MSPP hearing, which is why you see the legislation.

[01:00:53] Speaker 02:
But you can get the same remedies.

[01:00:55] Speaker 06:
In theory, if you could be successful, which, as the GIO pointed out, is a very, very unlikely prospect, and not in the same time.

[01:01:03] Speaker 02:
The MSPD process is- Isn't that an issue for Congress?

[01:01:05] Speaker 02:
I mean, you've recognized that these bills keep getting proposed to Congress over and over again, and they have some significant support, but they don't get enacted.

[01:01:15] Speaker 06:
It's an issue for Congress if we're talking about an appeal under 2303, but we're not.

[01:01:22] Speaker 06:
An issue for this court is Mr. Parkinson's rights under section 75 and under section 7701.

[01:01:29] Speaker 06:
That's the issue for this court, is what is that right?

[01:01:31] Speaker 06:
And is that right interfered with if you take away a critical part of his case?

[01:01:36] Speaker 11:
And I think- But just so I can understand for myself, when it comes to the 2303 regulatory framework,

[01:01:44] Speaker 11:
There is the possibility for there to be a hearing on the allegation of a whistleblower retaliation, right?

[01:01:49] Speaker 11:
And there is the possibility of using subpoena power for getting testimony and documents.

[01:01:57] Speaker 11:
And there also is the possibility of reinstating the employee if it's determined that the whistleblower retaliation was a contributing factor to the removal.

[01:02:11] Speaker 11:
Am I correct on all those things?

[01:02:13] Speaker 06:
There's a possibility.

[01:02:14] Speaker 06:
But at the MSPB, Mr. Parkinson has a right to a hearing.

[01:02:17] Speaker 06:
That's very different than saying, we'll give you a hearing if we want.

[01:02:20] Speaker 06:
That's a different thing.

[01:02:23] Speaker 06:
And at the MSPB, the MSPB is required to complete its cases in a certain amount of time.

[01:02:29] Speaker 06:
And it moves quickly.

[01:02:30] Speaker 06:
And that's intended because when someone is fired, then they need to have their appeal adjudicated in a timely fashion.

[01:02:36] Speaker 06:
And I think I'd just like to point out one more thing about

[01:02:40] Speaker 06:
the FBI's internal review board, the disciplinary review board that a regular FBI employee would go to.

[01:02:46] Speaker 06:
Mr. Parkinson also went through that process and early on in our MSPB litigation, the administrative judge did actually state the MSPB case.

[01:02:55] Speaker 06:
But then when the disciplinary review board took longer, the judge declined to stay the MSPB case.

[01:03:01] Speaker 06:
So he was actually proceeding under both the disciplinary review board and the MSPB.

[01:03:05] Speaker 06:
And I think it's very clear which body would have ultimate jurisdiction to review the removal.

[01:03:11] Speaker 06:
And that would be the MSPB and ultimately this court.

[01:03:14] Speaker 06:
And so I just would like to leave the court with the point that this is not a question of jurisdiction and that the MSPB

[01:03:23] Speaker 06:
Our congressional intent was to preserve MSPB rights for preference eligible veterans and preserve direct appeal rights in enacting whistleblower statutes under 1214 and 1221.

[01:03:34] Speaker 07:
Thank you.

[01:03:36] Speaker 07:
We thank both counsel and the cases submitted.

[01:03:38] Speaker 01:
That concludes our proceedings for this morning.