Appeals Court: FBI Employees Cannot Raise Defense of Whistleblower Reprisal in Adverse Action Appeals
On October 26, 2017, the Federal Circuit Court of Appeals, after granting the Department of Justice’s petition for rehearing en banc, vacated its prior decision, and found that preference-eligible FBI employees appealing an adverse action to the Merit Systems Protection Board may not raise an affirmative defense of whistleblower reprisal, nor may they file an individual right of action (“IRA”) appeal to bring whistleblower claims to the Board.
The appeals court held that 5 U.S.C. § 2302(b)(8) does not apply to any FBI employees, as FBI is excluded from the definition of “agency” in the statute. The appeals court noted that while Congress exempted FBI employees from the more commonly-utilized whistleblower protection laws, it created a “specific protection regime” for “FBI employees who act as whistleblowers” in 5 U.S.C. § 2303, a statute entitled “Prohibited personnel practices in the Federal Bureau of Investigation.” At the time the appeal was filed, 5 U.S.C. § 2303 limited the protected disclosures to those made within the Department of Justice. Although Congress recently amended § 2303 to “expand the list of people and offices to whom FBI employees may make protected disclosures,” the appeals court relied on the prior version of the statute, given that there was no explicit language or necessary implication that the amendment be given retroactive effect.
The appeals court observed that § 2303(c) does not grant the right to bring claims of whistleblower reprisal directly to the Board via an IRA appeal, but instead requires the President of the United States (since delegated to the Attorney General) to “provide for the enforcement of this section in a manner consistent with applicable provisions of section 1214 and 1221,” and gives the Attorney General authority to prescribe regulations to “ensure that personnel actions are not taken against FBI employees as reprisal for making a protected disclosure.” The sections referenced by the statute, Section 1214 and Section 1221, refer to refers to Office of Special Counsel investigations and IRA appeals at the Board, respectively.
Holding that the “broad and encompassing language of § 2303 and the corresponding broad exclusion of the FBI from § 2302, indicates Congress’s intent to establish a separate regime for whistleblower protection within the FBI,” the appeals court concluded that the allowance of whistleblower claims as affirmative defenses in adverse action appeals or as IRA appeals would “contradict the unambiguous statutory language” of the statute that provides a specific protection regime for FBI employees.
For these and other reasons, the United States Court of Appeals for the Federal Circuit, en banc, partially vacated the panel opinion (specifically the finding that FBI employees may raise whistleblower reprisal as an affirmative defense at the Board), reinstated the panel opinion otherwise, and remanded the case to the Board for a determination of the appropriate penalty to be levied on the employee.
Two judges issued dissenting opinions, joining in each other’s dissent. Judge Plager’s dissent stated that the statutory structure governing federal employment is “riddled with inconsistencies and puzzling provisions,” and that “parsing the variety of statutes that could be invoked as applicable to a particular personnel problem is akin to predicting divine will by studying animal entrails.” Judge Plager found that requiring FBI whistleblowers blowing the whistle regarding other FBI employees and supervisors to have their case decided by the FBI could be considerd an “offense to basic principles of due process and governmental authority toward people whose only sin may be that they have chosen to work for the Government.” Citing the United States Consitution’s Fifth Amendment, and the seminal case of Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985), Judge Plager stated that “[n]o 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.” Concluding his dissent, he stated “If this case is not a denial of due process by the Government, I am hard pressed to imagine one…if the MPSB fails in its duty to provide a fair and proper hearing, the law gives him a right to appeal to this court for correction. Both we and the MSPB have failed in our duty.”
This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.