A former Sacramento-based FBI special agent who turned whistleblower and successfully challenged his subsequent firing now must take his case to court again.
In at least a temporary reversal of fortune for ex-agent John C. Parkinson, the Justice Department this week persuaded a full federal appeals court to reconsider an earlier decision that the FBI wrongly fired the Iraq War veteran.
The move marks the latest turn for Parkinson, a Marine Corps lieutenant colonel who served in the FBI’s Sacramento office for about 10 years, beginning in 1999. It’s also relatively uncommon for the appeals court itself, which rarely convenes all 12 of its active judges to review a smaller panel’s decision.
“We believe the original . . . panel decision was correct,” attorney Jesselyn A. Radack said Tuesday, adding that “Lt. Col. Parkinson has been phenomenally patient since blowing the whistle eight years ago on FBI pilots misusing government aircraft to solicit prostitutes, and he remains confident justice will ultimately prevail.”
Radack is national security and human rights director for the Whistleblower & Source Protection Program at ExposeFacts, a whistleblower advocacy group. Along with fellow attorney Kathleen M. McClellan, she has been representing Parkinson.
The appeals court ordered a rehearing Monday.
Parkinson’s original whistleblower allegations were incendiary, charging two fellow agents with sexual improprieties. In one 2008 whistleblowing letter, Parkinson alleged that a Sacramento-based colleague had a “career-long pattern of soliciting sex with prostitutes.” This agent, Parkinson alleged, “utilized the FBI’s plane to fly at night to Reno, Nevada, for the sole purpose of engaging prostitutes in acts of illicit sex.”
Another Sacramento-based colleague, Parkinson alleged, had a “history of viewing Internet pornography” during work hours.
“Mr. Parkinson was concerned that (the two colleagues) would defile the furniture by engaging in sexual activity and masturbating on it and watching pornography on the television,” his attorneys recounted in a filing with the Merit Systems Protection Board.
The revived arguments before the full U.S. Court of Appeals for the Federal Circuit will focus on a quieter issue of potentially broader importance.
In particular, the court will address in the so-called en banc hearing whether Parkinson could use his whistleblower status in challenging his firing before the Merit Systems Protection Board. The Justice Department contends he can’t.
“There is no dispute that Congress treats whistleblower claims by FBI employees differently from whistleblower claims by most other federal employees,” the Justice Department argued in a legal brief.
If allowed to stand, the panel’s decision would undermine Congress’s intent to grant the Attorney General exclusive authority for prescribing procedures to address whistleblower reprisal claims by FBI employees. U.S. Justice Department
Federal law, the Justice Department added, “requires claims of whistleblower reprisal by FBI employees, without exception, to be handled internally” by the department rather than by the independent board.
The FBI declined to comment Tuesday.
In a Feb. 29 ruling, a three-judge panel of the appeals court disagreed and reasoned that Parkinson should have been allowed a whistleblower defense at the Merit Systems Protection Board because of his preferred status as a veteran.
“Preference eligible FBI employees against whom adverse employment action has been taken may appeal such action to the Board, though non-preference eligible FBI employees do not have such a right,” the federal circuit panel stated.
Citing problems with the board’s reasoning, the panel further concluded that Parkinson’s 2012 termination for alleged unprofessional conduct and lack of candor “cannot be sustained.”
Parkinson lost his case before the merit board, prompting him to file his lawsuit with the federal circuit appeals court, which often also handles highly technical patent cases.
The Justice Department, in urging the full appeals court to reconsider Parkinson’s case, contended that special FBI whistleblower procedures are warranted because of the nature of the bureau’s work.
“Permitting the MSPB to entertain such claims increases the risk of unintended disclosure of sensitive or classified national security information,” the Justice Department said.