FBI Employees Cannot Use Whistleblower Retaliation as a Defense, Court Rules

FBI employees do not have the right to defend themselves in federal court or a third-party appeals agency against adverse personnel actions using whistleblower retaliation, according to a recent ruling from the Federal Circuit.

Most FBI employees were already prohibited in statute from appealing any adverse action before the Merit Systems Protection Board or any entity outside the Justice Department, but the U.S. Court of Appeals for the Federal Circuit ruled in a precedent-setting decision that even those with veteran status who are permitted to take their case to MSPB cannot use reprisal as a defense. The ruling came down in Parkinson v. the Justice Department, a case in which former FBI employee John Parkinson claimed his firing was unjustified and a result of retaliation against his blowing the whistle on employees who used FBI surveillance planes for joy rides and to pick up prostitutes.

Parkinson was successful over the course of his hearings with MSPB and the appeals court in knocking down three of the four charges against him, which will likely lead to his reinstatement at the FBI once his case is reheard by MSPB. The appeals court initially also ruled in his favor on his right to pursue a whistleblower reprisal defense, but Justice fought that decision and successfully appealed to the entire bench to reverse it.

Kathleen McClellan, one of Parkinson’s attorneys in the case through the nonprofit whistleblower advocacy group ExposeFacts, called the decision a “big blow” to both whistleblowers and veterans and said her client may appeal the ruling to the Supreme Court.

Normally, FBI whistleblowers and those appealing adverse actions must go through Justice’s internal Office of Attorney Recruitment and Management. A 2015 Government Accountability Office report faulted that office for not properly handling cases, failing to protect whistleblowers from retaliation and taking up to 10 years to resolve complaints. As a veteran, Parkinson had a special capacity to pursue his case externally. In a 12-2 decision, however, the court ruled those rights did not extend to a retaliation defense.

Federal law “requires all FBI employees to bring claims of whistleblower reprisal to the attorney general,” the majority wrote in its opinion. The appeals court joined the original decision from an MSPB administrative judge and its central board, and vacated the decision from a subset of its judges.

McClellan said there are inherent problems with requiring FBI employees to pursue their cases internally, with their top boss—the attorney general—making a final decision. In Parkinson’s case, he initially brought information on FBI pilots flying on government planes to Reno, Nevada, to solicit prostitutes to his chain of command. His performance ratings were subsequently lowered, he said, and he was demoted from a leadership role to a lower ranking position.

Parkinson appealed that decision to OARM. During the course of its investigation, Parkinson’s supervisors who he had accused of retaliating against him raised counter-accusations aimed at Parkinson. A subsequent investigation, which McClellan said her client thought was about his retaliation claims, found Parkinson guilty of four charges involving obstructing an investigation and unprofessional conduct. On those grounds, the FBI fired Parkinson.

Only one obstruction charge now remains, which the appeals court had ruled carried a maximum punishment of a 30-day suspension. McClellan is therefore confident her client will be reinstated, but said the larger precedent is troubling.

FBI employees with veteran status “will have to carve out a fundamental part of their defense” when arguing in front of MSPB, she said. She added it was “significant” that Justice “fought so hard to preserve that precedent,” calling it “disturbing” that the Trump administration is continuing an ongoing battle to repress national security whistleblowers given its “war on leaks.”

Last year, President Obama signed the FBI Whistleblower Protection Enhancement Act to bring new protections to FBI employees who properly report wrongdoing up their chains of command. Many whistleblower advocates called that reform modest, however, and said it failed to address the root of the disparity that FBI workers face compared to the rest of the federal workforce.

In the dissenting opinion, Circuit Judge Jay Plager said his colleagues in the majority were trying to make an overly technical argument based on the multitude of complicated and sometimes conflicting laws governing federal personnel.

“Sometimes, parsing the variety of statutes that could be invoked as applicable to a particular personnel problem is akin to predicting divine will by studying animal entrails,” Plager wrote. “An alternative approach in this case is to address what Mr. Parkinson’s case is fundamentally about, and what the fair and just result should be.”

He added: “No amount of parsing of tangential statutes and regulatory provisions can justify a basic denial of the right to make one’s best case to the designated arbiter of one’s fate.”

Plager agreed with McClellan’s argument about a conflict of interest, writing, “The FBI agency is both defendant and judge of the employee’s whistleblower claim of unfair treatment.” He further said the court did not provide a proper check on FBI’s authority: “Both we and the MSPB have failed in our duty.”

Parkinson’s case will be remanded back to MSPB after any potential further appeals.