Earlier today, the National Whistleblower Center (NWC) joined a friend-of-the-court brief filed with the Supreme Court in support of FBI whistleblower John Parkinson’s petition for certiorari, seeking review of the Federal Circuit’s decision denying veterans’ preference-eligible FBI employees the right to raise whistleblowing as an affirmative defense in an appeal to the Merit Systems Protection Board (MSPB).
The amicus brief, filed on behalf FBI whistleblowers Michael German, Robert Kobus, Jane Turner, and Frederic Whitehurst, as well as the NWC and the Project on Government Oversight, details why the Department of Justice’s procedures for FBI whistleblowers are not an adequate substitute for a veterans’ preference-eligible FBI employee raising a whistleblower claim in an MSPB case.
Lt. Col. Parkinson was dismissed from the FBI and sought to raise whistleblower reprisal as an affirmative defense at his MSPB hearing. He was denied the opportunity by the MSPB, won an appeal of that denial before a Federal Circuit panel, but then lost on rehearing en banc. The Federal Circuit overturned, in part, a panel decision and determined that FBI whistleblowers may not raise whistleblower reprisal as an affirmative defense before the MSPB.
The amicus brief chronicles the long-winded paths to justice of four former FBI whistleblowers, including former FBI crime lab expert Dr. Frederic Whitehurst, who bravely blew the whistle on flawed forensic science at the FBI lab; former FBI agent Michael German, who reported the FBI’s illegal recording of conversations in violation of Title III wiretap regulations during a counterterrorism investigation; former FBI agent Jane Turner, who reported to the DOJ Inspector General that colleagues had stolen items from Ground Zero after the September 11, 2001 terrorist attacks; and retired FBI employee Robert Kobus, who worked at the FBI’s New York Field Office for 35 years and made a protected disclosure regarding some of his colleagues’ abuses of the FBI’s leave policy. Both Whitehurst and Turner hold leadership positions at the NWC.
Unfortunately, this is not the first time the Federal Circuit has issued a decision denying whistleblowers the rights intended by Congress. The Supreme Court should agree to hear this important case in order to correct the Federal Circuit’s dubious decision and to ensure that veterans who work at our foremost law enforcement agencies are fully protected when they blow the whistle.
Gregory Dubinsky, of Holwell, Shuster & Goldberg, who co-wrote the amicus brief, emphasized that “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.”
Joshua Geltzer, of the Institute for Constitutional Advocacy and Protection (ICAP) at Georgetown University Law Center, and co-author of the amicus brief, remarked the Federal Circuit’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.”
David Colapinto, NWC General Counsel and partner in the law firm of Kohn, Kohn & Colapinto, who represented Whitehurst, Turner, and Kobus in their FBI whistleblower cases, said that the NWC is “very grateful that Holwell, Shuster & Goldberg and ICAP agreed to file the amicus brief” on behalf of NWC and the other amici.
Read the complete amicus brief here.
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