FBI Whistleblowers Ask U.S. Supreme Court to Restore Veterans’ Whistleblower Protections

March 8, 2018

Georgetown Law’s Institute for Constitutional Advocacy and Protection files Supreme Court brief on behalf of FBI whistleblowers and leading advocacy groups.

Holwell Shuster & Goldberg LLP and Georgetown Law’s Institute for Constitutional Advocacy and Protection (ICAP) today announced they have filed a friend-of-the-court brief on behalf of four former FBI whistleblowers, the National Whistleblower Center, and the Project On Government Oversight. The brief urges the Supreme Court to hear Parkinson v. Department of Justice so that the Court can ensure military veterans working at the FBI receive the protections from whistleblower retaliations that they deserve and that Congress provided to them.

Lt. Col. John C. Parkinson’s petition seeks an opportunity—denied to him by the en banc Court of Appeals for the Federal Circuit—to raise his claim of whistleblower retaliation in front of the Merit Systems Protection Board, a non-political administrative body, rather than being forced to seek relief only through internal, often problematic FBI channels.

“Congress guaranteed veterans working in the federal government critical whistleblower protections, but the government is currently denying these to Lt. Col. Parkinson and other veterans,” said ICAP executive director Joshua Geltzer, a former lawyer at the National Security Council and the Department of Justice’s National Security Division. “The lower court’s decision to strip veterans now working at the FBI of protections they’d enjoy elsewhere in government flies in the face of Congress’s persistent efforts to protect such whistleblowers, and the Supreme Court should step in to correct it.”

The brief, filed today, argues that the forum in which Mr. Parkinson is able to seek redress for retaliation is pivotal to his ability to obtain meaningful relief. The FBI’s internal process has been hampered by dysfunction that allows cases to drag on for years and deprives whistleblowers like Mr. Parkinson of any chance to have a truly neutral decision-maker decide their claims. The brief also highlights that the Federal Circuit’s restrictive approach to whistleblower protections in this case is part of a longstanding and troubling pattern that the Supreme Court should step in to address, as it has done in the past.

To illustrate the challenges whistleblowers like Lt. Col. Parkinson will face if the Supreme Court declines to take the case and correct the Federal Circuit’s mistaken decision, the brief tells the stories of four former FBI whistleblowers on whose behalf the brief was filed, each of whom had to endure major obstacles in the FBI’s process. Two of them, Jane Turner and Robert Kobus, had to wait a decade for their claims to be resolved. Another, Michael German, had to wait over three years, endured pressure from his supervisors, and saw FBI officials tamper with documents in an attempt to cover up the misconduct he reported. The fourth whistleblower, Dr. Frederic Whitehurst, had no process available to him at all at the time he disclosed agency wrongdoing, in the form of seriously flawed scientific techniques and improperly pro-prosecution testimony by the FBI laboratory.

Unfortunately, these cases are by no means unique, as the brief shows. A 2015 report from the Government Accountability Office revealed that from 2009 to 2013—a period when 62 complaints of retaliation were resolved within the FBI and broader Justice Department—only four were addressed on the merits and they took on average eight years to complete.

Lt. Col. Parkinson’s case presents the Supreme Court with a key opportunity to ensure that veterans who continue their service to the United States by working at the FBI enjoy robust protections from retaliation. As the brief explains, Congress has generally provided such veterans with the right to make their case in front of the Merit Systems Protection Board. Had Lt. Col. Parkinson served in nearly any other agency, he would have enjoyed that right as well. As the brief contends, the Federal Circuit’s unfortunate decision to deny Lt. Col. Parkinson that safeguard because he served in the FBI is difficult to square with Congress’s judgment that veterans are normally entitled to enhanced whistleblower protections.

“Our veterans make incredible sacrifices for our country, and we owe it to them to deliver on the promises Congress made in federal law to protect their rights when they face retaliation for blowing the whistle,” said Gregory Dubinsky, a lawyer with Holwell Shuster & Goldberg and counsel of record on the brief. “The Supreme Court’s review is needed in this important case to vindicate those rights.”

Holwell Shuster & Goldberg is a leading New York-based litigation boutique co-founded in 2012 by former Southern District of New York judge Richard J. Holwell. The firm is frequently asked to draft amicus briefs addressing significant legal issues, and has filed more than half a dozen briefs in Supreme Court cases since the current term started in October 2017. ICAP was formed at Georgetown Law in 2017 by leading former government national security and law enforcement lawyers and has previously advocated on behalf of whistleblowers. In September 2017, ICAP, on behalf of 13 scholars of constitutional, administrative, and civil service law, urged the Office of Special Counsel to conduct an investigation to ensure that the Department of the Interior not use politics as a reason for reassigning senior employees to new roles.

Read the full brief here.