Rutherford Institute Urges U.S. Supreme Court to Protect First Amendment Rights of FBI Whistleblower Fired for Exposing Agency Misconduct
by Nisha Whitehead
WASHINGTON, DC —The Rutherford Institute has come to the defense of an FBI agent and military veteran who was fired for blowing the whistle on misconduct within the FBI. In an amicus curiae brief filed with the U.S. Supreme Court in John C. Parkinson v. Department of Justice, Rutherford Institute attorneys argue that Parkinson has a First Amendment right to speak out about agency misconduct within the FBI and retaliating against him for doing so deprives him of this constitutional right.
Attorneys Michael J. Lockerby, David A. Hickerson and George E. Quillen of Foley & Lardner LLP in Washington, DC, assisted The Rutherford Institute with the First Amendment brief.
“In our current governmental climate, where laws that run counter to the dictates of the Constitution are made in secret, passed without debate, and upheld by secret courts that operate behind closed doors, obeying one’s conscience can often render you a criminal,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “If we are to have any hope of restoring transparency and accountability to our government, it is more critical than ever that we stand up for the rights of those whistleblowers who dare to speak out against governmental wrongdoing.”
John Parkinson was a decorated veteran who served in Iraq and Afghanistan and became a Special Agent with the FBI. In 2008, Parkinson made whistleblowing disclosures to his superior in the FBI about misconduct by other agents. Parkinson was subsequently given low performance reviews, reassigned and stripped of a leadership position. Believing that these punitive actions were in retaliation for his whistleblowing about agency misconduct, Parkinson complained to his superior, who then launched an investigation that resulted in Parkinson’s firing.
Although federal law establishes a system whereby federal employees can challenge their firing or demotion by filing a claim with the Merit System Protection Board (MSPB), FBI employees are generally prohibited from doing so unless they are “preference eligible” because they served in the military. Federal employees who challenge their firing or demotion by filing a claim with the MSPB are entitled to raise as a defense that the adverse action is illegal because it was imposed as punishment for engaging in “whistleblowing” activities, meaning the employee spoke out against fraud, waste or misconduct they observed within their agencies. As a preference-eligible FBI employee, Parkinson filed an appeal of his firing with the MSPB and raised the defense that his discharge was in retaliation for his whistleblowing activities. However, the MSPB and a federal appeals court ruled that Parkinson could not raise a whistleblower defense, pointing to the fact that Congress had set up a separate process within the Department of Justice to handle whistleblowing complaints by FBI agents.
In calling on the Supreme Court to review the case, Rutherford Institute attorneys argue that the appeals court’s ruling deprived Parkinson of due process of law because, even though there is a separate whistleblowing complaint process for FBI employees, preference-eligible employees are entitled by law to appeal to the MSPB and raise the defense that an adverse employment action is in violation of the law.