Parkinson v. Department of Justice
815 F.3d 757
| Fed. Cir. | 2016Background
- Parkinson, a preference-eligible FBI Special Agent and SOG leader, managed $70,000 in tenant-improvement funds from landlord Rodda for an undercover facility build-out; questions arose about additional spending and missing receipts.
- Parkinson made whistleblower disclosures in 2008 alleging misconduct by colleagues; after adverse personnel actions he complained of reprisal and engaged OIG/OIG-related processes.
- OIG/OPR investigated the build-out funds; Rodda later produced receipts showing ~$78,789 spent and stated Parkinson told him to give documents to OIG rather than FBI.
- Parkinson prepared a signed “mutual recollection” statement for Rodda about a $1,215.67 check and met with Rodda/Rawls during the investigation; OPR alleged obstruction and lack of candor among other offenses and proposed dismissal.
- The MSPB sustained obstruction (FBI Offense Code 2.11) and two specifications of lack of candor (FBI Offense Code 2.6), and affirmed removal; it rejected several other charges and denied Parkinson’s affirmative defenses under USERRA and whistleblower law.
- On appeal, the Federal Circuit sustained the obstruction charge and the MSPB’s bar on a USERRA defense, reversed the lack-of-candor findings (for two specifications), and held Parkinson may raise an FBI-specific whistleblower-reprisal defense before the Board; case remanded for reconsideration of whistleblower defense and appropriate penalty for the sustained obstruction charge.
Issues
| Issue | Parkinson's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Parkinson obstructed OPR/OIG by preparing the signed statement and coordinating witnesses | Parkinson said he sought to clarify facts and facilitate OIG, not obstruct | Agency argued Parkinson met with witnesses to lock in stories and impede OIG, regardless of truth of statements | Held: Obstruction sustained; substantial evidence Parkinson acted to improperly influence investigation |
| Whether Parkinson lacked candor under oath in distinguishing “asked” vs. “told” Rodda and in saying expenses were “approved” by Rodda | Parkinson contended his word choices reflected sincere distinctions (request vs directive; approval vs ratification) and he did not knowingly omit or mislead | Agency inferred deceptive intent from wording differences and Rodda’s impressions | Held: Two lack-of-candor specifications reversed — no substantial evidence Parkinson knowingly failed to be fully forthright |
| Whether a preference-eligible FBI agent may assert an affirmative whistleblower-reprisal defense before MSPB under 5 U.S.C. § 7701(c)(2)(C) | Parkinson: §7701(c)(2)(C) permits showing agency action “not in accordance with law” and §2303 (FBI whistleblower protection) makes reprisal unlawful; internal DOJ procedures do not preclude Board review for preference eligibles | Government/MSPB: FBI excluded from §2302(b); §2303 creates internal DOJ enforcement and Congress/AG intended FBI whistleblower matters to be handled internally, so MSPB lacks authority | Held: Court (majority) — Parkinson may raise §2303-based whistleblower defense before the Board; dissent would bar Board review and leave resolution to DOJ internal process |
| Whether Parkinson may assert USERRA affirmative defense before MSPB | Parkinson sought to assert USERRA reemployment protections as defense | Government argued 38 U.S.C. § 4315 prescribes agency procedures and expressly bars judicial review of agency determinations regarding reemployment | Held: USERRA defense barred — Congress clearly intended to preclude judicial review of those substantive determinations at agencies like the FBI |
Key Cases Cited
- Hambsch v. Dep’t of Treasury, 796 F.2d 430 (Fed. Cir. 1986) (Board credibility determinations virtually unreviewable)
- Ludlum v. Dep’t of Justice, 278 F.3d 1280 (Fed. Cir. 2002) (distinguishing lack of candor from falsification; lack of candor requires knowingly not being fully forthright)
- Doe v. Dep’t of Justice, 565 F.3d 1375 (Fed. Cir. 2009) (agency bears burden to show removal promotes efficiency of the service)
- United States v. Aguilar, 515 U.S. 593 (1995) (criminal-obstruction precedent distinguishing need for knowledge of specific proceeding)
- Arthur Andersen LLP v. United States, 544 U.S. 696 (2005) (requiring culpable mental state under obstruction statutes)
- Dep’t of Homeland Sec. v. MacLean, 135 S. Ct. 913 (2015) (discussing scope of whistleblower protections and statutory exclusions)
- United States v. Bormes, 133 S. Ct. 12 (2012) (specific remedial scheme can displace general remedies)
- RadLAX Gateway Hotel v. Amalgamated Bank, 132 S. Ct. 2065 (2012) (general provision cannot be used to undermine specific statutory text)
- Fausto v. Comm’r, 484 U.S. 439 (1988) (statutory scheme can preclude judicial review of certain personnel claims)
- Lachance v. Devall, 178 F.3d 1246 (Fed. Cir. 1999) (Board must respect agency’s statement about desired lesser penalty when fewer charges are sustained)