United States Court of Appeals 

for the Federal Circuit ______________________

JOHN C. PARKINSON,

Petitioner

v.

DEPARTMENT OF JUSTICE,

Respondent

______________________

2015-3066

______________________

Petition for review of the Merit Systems Protection 

Board in No. SF-0752-13-0032-I-2.

______________________

Before PROST, Chief Judge, NEWMAN, LOURIE, DYK, 

MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, CHEN, 

HUGHES, and STOLL, Circuit Judges.*

PER CURIAM.

O R D E R

Respondent, the Department of Justice, filed a petition for rehearing en banc. A response was invited by the 

court and filed by Petitioner John C. Parkinson. The 

* The panel that heard the appeal included Senior 

Circuit Judges Plager and Linn, who did not participate 

in the en banc poll, but elect to sit on the en banc panel 

pursuant to 28 U.S.C. § 46(c) (2012).

 
2 PARKINSON v. DOJ

petition and response were considered by the panel that 

heard the appeal, Fed. Cir. R. 35 Practice Notes (“Petition 

for Rehearing En Banc Referred to Panel”), and thereafter 

referred to the circuit judges who are in regular active 

service. A poll was requested and taken, and the court 

decided that the appeal warrants en banc consideration.

Upon consideration thereof,

IT IS ORDERED THAT:

(1) Respondent’s petition for rehearing en banc is 

granted.

(2) The court’s opinion of February 29, 2016, is vacated, and the appeal is reinstated.

(3) The parties are requested to file supplemental

briefs. The briefs should address the following issue:

Whether a preference eligible employee of the 

Federal Bureau of Investigation challenging an 

adverse employment action before the Merit Systems Protection Board under 5 U.S.C. § 7513(d) 

may raise whistleblower reprisal in violation of 

5 U.S.C. § 2303 as an affirmative defense under 

5 U.S.C. § 7701(c)(2)(C).

Briefing should be limited to this issue.

(4) The supplemental en banc briefs shall be electronically filed in the ECF system, and thirty paper copies of 

each brief shall be filed with the court. Two paper copies 

of each en banc brief shall be served on opposing counsel. 

Respondent’s en banc brief is due 45 days from the date of 

this order. Petitioner’s en banc response brief is due 

within 30 days of service of Respondent’s en banc brief. 

Respondent’s reply brief is due within 15 days of service 

of Petitioner’s response brief. Briefs shall adhere to the 

type-volume limitations set forth in Federal Rule of 

Appellate Procedure 32 and Federal Circuit Rule 32.
PARKINSON v. DOJ 3

(5) The court invites the views of amici curiae. Any 

such briefs may be filed without consent and leave of 

court, but otherwise must comply with Federal Rule of 

Appellate Procedure 29 and Federal Circuit Rule 29.

(6) The parties are directed to file with the court thirty paper copies of their original briefs and joint appendix 

within 17 days from the date of this order.

(7) This appeal will be heard en banc on the basis of 

the original briefs, the supplemental briefs ordered herein, and oral argument.

(8) Oral argument will be held at a time and date to 

be announced later.

FOR THE COURT

 August 8, 2016 /s/ Peter R. Marksteiner 

Date Peter R. Marksteiner

 Clerk of Court

cc: Kathleen M. McClellan

Tara K. Hogan