The FBI wrongly fired a former Sacramento-based special agent who blew the whistle on his colleagues’ alleged sexual misconduct, a federal appeals court has ruled.
Capping a battle that’s raged across hearing rooms, courthouses and Capitol Hill, appellate judges rejected the bureau’s charge that led to the 2012 firing of former special agent John C. Parkinson. The ruling effectively means the bureau must either rehire him or settle.
“It should be appreciated that ... the penalty of removal, which was predicated on the now overturned lack-of-candor charge, cannot be sustained,” wrote Judge Richard Linn of the U.S. Court of Appeals for the Federal Circuit.
Parkinson’s attorneys call the court vindication, in the 35-page majority decision quietly released Monday, relatively uncommon for FBI whistleblowers and potentially meaningful for others who find themselves in the same shoes.
“We are thrilled at this victory,” attorney Jesselyn A. Radack, with the watchdog group ExposeFacts, said in an interview Tuesday. “It truly is a rare and historic ruling.”
Radack, who joined attorney Kathleen M. McClellan in the case, added that “in general, whistleblowers don’t have a great track record in the Federal Circuit.” The relatively obscure appellate court often handles patent and other technical cases.
The Parkinson ruling, though, follows years of claims and counterclaims that started with the salacious.
Parkinson joined the FBI in 1999 and arrived in Sacramento the same year, following initial training. By 2006, he was overseeing the Sacramento Division’s Special Operations Group handling sensitive undercover surveillance operations. The team worked from a clandestine, off-site facility.
“Parkinson’s team operated, often with little guidance, in order to determine the whereabouts and patterns of two international terrorism subjects,” one supervisor wrote, adding that the investigation required “several months of surveillance.”
In a 2008 whistleblowing letter, Parkinson alleged one 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, both on government and personal computers during work hours.”
“Mr. Parkinson was concerned that (the two colleagues) would defile the furniture by engaging in sexual activity … on it and watching pornography on the television,” his attorneys stated in an Aug. 16, 2013, filing with the Merit Systems Protection Board.
An attorney and decorated Marine Corps Reserve lieutenant colonel who had deployed to Iraq in 2004, Parkinson was in turn given poor job evaluations and reassigned from his position.
He considered these moves retaliation for his whistleblowing, which came to the attention of Iowa Republican Sen. Charles Grassley and eventually the Justice Department’s Office of Inspector General. In time, Parkinson himself was investigated for allegedly misusing funds involved in building new Sacramento quarters for the Special Operations Group.
“Throughout 2009, and until May 2010, Parkinson was interviewed repeatedly by OIG officials,” the appellate court noted.
The FBI ultimately concluded Parkinson had obstructed investigators through crafting certain documents and conversing with potential witnesses. The bureau also concluded he lacked candor in some of his responses.
After the FBI fired him in 2012, Parkinson filed a complaint with the Merit Systems Protection Board. Usually, the board cannot consider complaints from FBI employees. As a member of the military, though, Parkinson enjoys special protections.
Parkinson lost at the Merit Systems Protection Board, enabling him to appeal. The appellate court upheld the obstruction charge but rejected the more serious lack-of-candor charge, stating that “even assuming that Parkinson failed to be fully forthright, there is no substantial evidence that this failure was done knowingly.”
The most stringent penalty for obstruction would be suspension of up to 10 days, noted the appellate court, which also ruled that Parkinson should be able to raise a whistleblower defense if the merit board rehears what remains of the case.
The FBI declined to comment Tuesday.
The next steps could include, in theory, continued administrative hearings, reinstatement or, perhaps, a settlement involving back pay and other benefits for Parkinson, who is currently serving on active duty with the Marine Corps.
“He plans to get the most relief he can out of this decision,” Radack said.
One of the agents Parkinson complained about has since retired, Radack said. The other has not, while the Sacramento office leadership has turned over since Parkinson’s time.