FBI AGENTS GIVEN MSPB WHISTLEBLOWER DEFENSES?
NO, YES, NO.

Devotees to whistleblower cases will recall that Parkinson v. DOJ, SF-0752-13-0032-I-2 (NP 10/10/2014) (Vice Chairman Wagner dissenting), determined FBI employees were statutorily excluded from the group of "employees" who could raise whistleblowing affirmative defenses to cases otherwise within the Board's jurisdiction, e.g., an adverse action. That did not sit right with a panel of the Federal Circuit. Parkinson v. DOJ, 815 F.3d 757, 770-74 (Fed. Cir. 2016) (Judge Taranto dissented in part), parted company with the Board and determined that a whistleblower affirmative defense to an adverse action was available to an FBI agent. The ever-vigilant FBI sought and received higher-level review. Sitting en banc, the Federal Circuit vacated the panel decision and affirmed the Board's exclusionary ruling, Parkinson v. DOJ, ___F.3d___ (Fed. Cir. 2017) (Judges Plager and Linn dissenting).

SOME GAIN FOR WHISTLEBLOWERS SOME JEOPARDY FOR RETALIATORS

October 26, 2017, was the day President Trump signed into law the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017. The statute requires training of supervisors on whistleblower protections and training to all employees on those protections and means for making protected disclosures. Supervisors found by an agency, OSC, a federal judge, or the MSPB (why were arbitrators not included?) to have committed broadly-defined whistleblower reprisal are to be proposed for at least a three-day suspension (or other action) for a first offense and removal for the second offense. Ordinary Title 5 due process and appeal procedures apply. These requirements and others, should be reviewed by reference to the statute and the Senate Report, 115-44, accompanying the legislation.

TABLES OF PENALTIES
WHAT ARE THEY WORTH?

Tables of penalties may be worthwhile, but some are inconsistently applied (or manipulated), or so broadly stated as to ranges of penalties for offenses that they provide no meaningful guidance to managers (or adjudicators). Such was the conclusion of a staff report for the House Committee on Oversight and Government Reform, Tables of Penalties: Examining Sexual Misconduct in the Federal Workplace and Lax Federal Responses (Oct. 19, 2017).