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.
ORDER
Respondent, the Department of Justice, filed a peti-
tion 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 vacat-
ed, 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 Sys-
tems 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 electron-
ically 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 thir-
ty 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 here-
in, 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