Given recent press discussion about possible adverse actions targeting Federal Bureau of Investigation (FBI) employees, a brief discussion of what civil service appeal rights apply to FBI employees is timely.
All FBI employees are covered by the normal federal-sector EEO complaints process. However, only preference eligible FBI employees may have MSPB appeal rights over adverse actions; non-preference eligible FBI employees are excluded from MSPB jurisdiction for adverse actions. See 5 USC § 7511(b)(8). The category of ‘preference eligible’ employees generally includes Veterans and certain family members of disabled Veterans or veterans that lost their life while serving in the armed forces. The statute requires Veterans to have served on active duty during the Korean War, Vietnam War, Gulf War, or active duty following 9/11. Disabled Veterans having established a service-connected disability or who receive disability benefits from the VA are also included. Members of the Senior Executive Service (SES) are generally not considered preference eligible. Even those FBI employees without MSPB adverse action appeal rights are entitled to a degree of due process for may forms of adverse actions, derived from FBI internal regulations.
Concerning whistleblower reprisal claims, FBI employees are not covered by the normal Independent Right of Action whistleblower appeal mechanism, but instead are covered by a separate whistleblower reprisal complaints system administered by the Department of Justice, Office of Inspector General and Office of Professional Responsibility under 5 U.S.C. § 2303. See 5 USC §§ 2302(a)(2)(C)(ii)(I), 2303; 28 CFR § 27.1 et seq. In 2022, Congress amended the FBI whistleblower reprisal statute to allow for employees to file Independent Right of Action appeals to the MSPB, either after receiving a merits decision from the Department of Justice, or alternatively after 180 calendar days had passed without a final decision. See Pub.L. 117-263, § 5304(a)(1,2) (enacting new 5 U.S.C. § 2303(d)(1, 2)); 28 C.F.R. Part 27.
In October 2017, the U.S. Court of Appeals for the Federal Circuit issued a split decision (Parkinson v. Department of Justice, 874 F.3d 710 (Fed.Cir. 2017)) predating the 2022 amendment discussed above concerning adverse action appeals by the limited category of FBI preference eligible employees who have MSPB adverse action appeal rights. Ordinarily, employees may raise all applicable affirmative defenses in an MSPB appeal. However, the Federal Circuit majority held that FBI preference eligible employees could not raise whistleblower reprisal affirmative defenses in MSPB appeals, and instead had to raise those whistleblower reprisal claims through the 5 U.S.C. § 2303 whistleblower reprisal complaint system. Accordingly, for a preference eligible FBI employee who wishes to appeal an adverse action involving whistleblower reprisal, they potentially can file two separate cases that separately reach the MSPB, one on the adverse action and the other on the whistleblower reprisal claim.
All FBI employees are excluded from Office of Special Counsel (OSC) and Merit Systems Protection Board (MSPB) USERRA jurisdiction for USERRA claims (which include claims of discrimination or retaliation based on having performed uniformed military service). Erlendson v. Dept. of Justice, 2014 MSPB 61 (2014).
If you are an FBI employee, and wish to discuss your rights, consider contacting Gilbert Employment Law to request an initial consultation.