# United States **Court of Appeals**  **for the Federal Circuit**

______________________
JOHN C. PARKINSON, Petitioner

v.

DEPARTMENT OF JUSTIC E, Respondent

______________________

2015

- 3066

______________________ Petition for review of the Merit Systems Protection Board in No. SF

- 0752

- 13

- 0032

- I

- 2.

______________________

Before P ROST
, Chief Judge

, N EWMAN
, L OURIE
, D YK
, M OORE
, O’M ALLEY
, R EYNA
, W ALLACH
, T ARANTO
, C HEN
, H UGHES , and S TOLL
, Circuit Judges

. *

P ER C URIAM

. O R D E R

Respondent , the Department of Justice, filed a pet ition 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).PARKINSON v

. DOJ 2

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 ap peal warrants en banc consideration.

Upon consideration thereof,

I T I S O RDERED T HAT : (1) Respondent’s petition for rehearing en banc is granted.

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

(3) The parties are requested to file supplemental briefs. The briefs shoul d address the following issue:

Whether a preference eligible employee of the Federal Bureau of Investigation challenging an adverse employment action before the Merit Sy stems Protectio n 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 th is issue

. (4) The supplemental en banc briefs shall be electro nicall y 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 Ru le of Appellate Procedure 32 and Federal Circuit Rule 32.PARKINSON v

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(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 C ircuit Rule 29.

(6) The parties are directed to file with the court thi rty 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 s upplemental briefs ordered her ein, and oral argument.

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

F OR THE C OURT

August 8

, 2016 /s/ Peter R. Marksteiner Date Peter R. Marksteiner Clerk of Court

cc: Kathleen M. McClellan Tara K. Hogan