JOHN C. PARKINSON, Petitioner
DEPARTMENT OF JUSTICE, Respondent
Petition for review of the Merit Systems Protection Board in No. SF-0752-13-0032-I-2.
KATHLEEN M. MCCLELLAN, Government Accountability Project, Washington, DC, argued for petitioner. Also represented by JESSELYN A. RADACK.
MELISSA M. DEVINE, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by ELIZABETH M. HOSFORD, ROBERT E. KIRSCHMAN, JR., BENJAMIN C. MIZER.
Before TARANTO, PLAGER, and LINN, Circuit Judges. Opinion dissenting-in-part filed by Circuit Judge TARANTO.
Linn, Circuit Judge.
Lt. Col. John C. Parkinson (" Parkinson" ), a preference eligible veteran, appeals from a final decision of the Merit Systems Protection Board (" Board" or " MSPB" ) sustaining his removal as a Special Agent at the Federal Bureau of Investigation (" FBI" ) for lack of candor under oath in violation of FBI Offense Code 2.6, and obstruction of process of the Office of Professional Responsibility (" OPR" ) in violation of FBI Offense Code 2.11. Parkinson v. Dep't of Justice, No. SF-0752-13-0032-I-2 (M.S.P.B. Oct. 24, 2013). The Board assumed jurisdiction under 5 U.S.C. § § 7513(d), 7511(b)(8) and 7701, and we
have jurisdiction on appeal from the Board's final decision under 5 U.S.C. § 7703.
We sustain the obstruction charge, and the Board's dismissal of Parkinson's affirmative defense of violations of the Uniformed Services Employment and Reemployment Rights Act of 1994 (" USERRA" ). Because the lack of candor charge is unsupported by substantial evidence, and because the Board improperly precluded Parkinson from raising an affirmative defense of whistleblower retaliation, we reverse-in-part and vacate-in-part the Board's decision and remand for consideration of Parkinson's whistleblower defense and, if necessary, the appropriate penalty.
A. Parkinson and Facility Build-Out
Parkinson served as a special agent with the Sacramento field office of the FBI. Beginning in 2006, Parkinson served as the leader of a special operations group (" group" or " SOG" ), and was tasked with relocating a previously compromised undercover facility.
In 2006, the FBI leased a facility from James Rodda (" Rodda" ), who agreed to contribute $70,000 to be used for " construction, construction documents, permits and fees" (" tenant improvement funds" ). Parkinson negotiated the terms of the lease on behalf of the FBI, and managed the tenant improvement funds.
In February of 2008, partway through the facility build-out, Parkinson met with Assistant Special Agent in Charge Gregory Cox (" Cox" ), and made whistleblower-eligible disclosures, implicating two pilots involved with the group in misconduct. In August 2008, Cox and Parkinson's immediate supervisor, Supervisory Special Agent Lucero (" Lucero" ), issued Parkinson a low performance rating, removed him as group leader, and thereafter reassigned him to another field office.
Believing these acts to be retaliation for his February 2008 disclosure, Parkinson sent a letter to Senator Charles Grassley, who forwarded Parkinson's whistleblower reprisal allegations to the Department of Justice's Office of the Investigator General (" OIG" ) for investigation. OIG, in turn, opened a whistleblower reprisal investigation.
B. OIG Investigation of Parkinson
In October 2008, Special Agent Robert Klimt (" Klimt" ) replaced Parkinson as group leader, and took over the management of the off-site build-out. The OPR report describes Klimt's testimony with respect to the state of the facility build-out as Klimt found it: " the build-out had not been completed, there were no records concerning the build-out, there was no inventory for tools and equipment, and no building plans or permits."
In December 2008, Klimt requested from Rodda all receipts, invoices, and information relating to the tenant improvement funds used during the facility build-out. Rodda explained that the $70,000 in tenant improvement funds had been spent, and that Parkinson had requested, received, and spent an additional $7,000. Rodda indicated that he would look for the requested receipts, but failed to provide them after repeated FBI requests over several months.
On August 6, 2009, Cox and the Sacramento Office of the FBI submitted a referral to investigate possible misuse of the tenant improvement funds. The request was sent to the OIG, which began a misuse investigation shortly thereafter.
The OIG investigation included consideration of paper documents, interviews with Rodda, his office manager Barbara Rawls (" Rawls" ), his bookkeeper Maureen Massara, each of Parkinson's supervisors in Sacramento, and multiple interviews with Parkinson. Parkinson testified that until the Spring of 2010, he believed the interviews to be in connection with Parkinson's whistleblower reprisal complaint against the FBI leadership in Sacramento.
In November 2009, the OIG interviewed Rodda, who provided a Vendor Balance Detail report, listing all the tenant improvement expenses and hired vendors, and subsequently provided the OIG with all receipts and invoices to support the listed expenditures. The report indicated that Parkinson had spent $78,789.48 for tenant improvements. When the OIG asked Rodda why he had not provided the report and receipts to the FBI earlier, he first responded that the FBI agents " were being snoopy," but later stated that Parkinson " had told" him " not to provide them as the OIG would be coming and asking for them in the near future." J.A. 175. The characterization and import of Parkinson's communication to Rodda to withhold the receipts from the FBI is in dispute, and is described infra in connection to the lack of candor determination.
In April 2010, Rodda, Rawls, and Parkinson met to come to a " mutually agreed set of facts" with regard to a check written directly to Parkinson on July 12, 2007 for $1,215.67. J.A. 14. Parkinson took notes during the meeting, gave them to Rawls to type, and had Rodda sign the resulting statement. The statement indicated that the check was made out to Parkinson to pay for a subcontractor who would only accept payment in cash. Parkinson testified that " the document was created in response to the rampant rumors that were going through the Sacramento Division about possible misuse of funds [by Parkinson]," J.A. 759, and that he was trying to " defend [him]self against those accusations." J.A. 760. The statement explains: " I authorized this check to cover the cost of installing interior doors to the building. Upon completion of the door installation, the contractor who performed the work indicated that he required cash payment . . . . My bookkeeper was out of the office that day and, in light of my staff shortage, Mr. Parkinson took the check to my bank to acquire the cash to pay the contractor." J.A. 171-72. Rodda confirmed in a later interview that the information in the statement appeared to be correct, but that he could not verify the specific details. The OIG report noted that on June 17, 2010, two months after the meeting took place, neither Rodda nor Rawls could recall what the check was for. The Board determined that as of April 2010, Parkinson " anticipated that OIG would be investigating his handling of the build-out." J.A. 15.
Throughout 2009, and until May 2010, Parkinson was interviewed repeatedly by OIG officials. In Spring 2010, Rodda told Parkinson that he believed the OIG was targeting Parkinson, and not just investigating Parkinson's whistleblower complaint. In a May 2010 interview, OIG confirmed to Parkinson that he was indeed the target of its investigation concerning the tenant improvement funds.
In the course of the interviews, Parkinson made two groups of statements that are particularly relevant to the instant case. First, the OIG investigator, David Loftus, asked, " what were considered tenant
improvement items that [Rodda,] the owner of the [group] off-site was to pay for? . . . . What was that supposed to be for, the improvements?" and Parkinson answered, " Let me be very clear on this point. Nothing was done with any of the tenant improvement funds that was not approved by [Rodda]." J.A. 635.
Second, Parkinson was asked several times about his communication to Rodda about his desire that Rodda provide the receipts to the OIG and withhold them from the FBI. The relevant colloquies are reproduced below:
Q: Did you instruct [Rodda] not to provide [the FBI] with receipts?
A: I instructed [Rodda] to provide those to the Office of the Inspector General.
. . .
Q: [D]id you tell [Rodda] not to provide receipts to the FBI? It's a simple yes or no.
A: I asked him not to do that.
Q: Okay. So you told him not to provide receipts to us, I mean to the FBI?
A: I didn't tell him. I asked him not to.
Q: You asked him not to? And what was your purpose for that?
A: Because my situation was having invoked the protections of the Whistleblower Protection Act . . . [a]nd I necessarily wanted OIG to be the fair arbiter of that.
. . .
A: No, no, I don't feel like I have the authority to tell anyone anything with regard to this.
Q: Well, you did.
A: No, I asked [Rodda] to provide the information to the OIG rather than FBI management.
. . .
A: I did not instruct [Rodda] to refuse to do it, in terms of providing it to the FBI. I advised him that those were his private business documents.
. . .
Q: . . . How are those records his private records that he is not to share with FBI, who has entered into an agreement with him? If he's not paying that money, if he has paid nothing, FBI could pull out of the lease. They have every right to see it. I don't know why you're classifying this as his private records?
A: I can't agree with you on this point because, as a private businessman, a private person, issuing funds that are his personal funds to improve his building, which he owns [in] fee simple, that is solely his business.
C. Procedural History and Parkinson's Challenges
The OIG sent the FBI its report of factual findings, and the OPR thereafter issued its own report, and proposed Parkinson's dismissal. The OPR report concluded that a preponderance of the evidence substantiated four offenses: 1) theft under FBI Offense Code 4.5 for removal of furniture from the offsite location; 2) obstruction of the OPR process under FBI Offense Code 2.11 for creating the April 2010 " mutual recollection" document for Rodda's signature; 3) unprofessional conduct on duty under FBI Offense Code 5.22 for (a) instructing Rodda and Rawls not to provide the receipts to the FBI, (b) signing
a false purchase agreement for the removal of furniture from the off-site, (c) spending tenant improvement funds for non-construction related expenses, (d) using cash to pay a laborer; and 4) lack of candor under FBI Offense Code 2.6 for statements made during the OIG investigation, reproduced supra at 6-8, concerning: (a) distinguishing between advising and telling Rodda and Rawls not to provide the FBI with the receipts; (b) asserting that Rodda approved all statements--without explaining that Rodda ratified the statements only afterwards; (c) asserting that the statement signed by Rodda regarding the check made out to Parkinson was a " mutual recollection" while neither Rawls nor Rodda could remember the purpose of the check two months later; and (d) statements made about furniture removed from the SOG site.
The OPR thereafter proposed to dismiss Parkinson for the theft (FBI Offense Code 4.5), unprofessional conduct while on duty (FBI Offense Code 5.22), and lack of candor (FBI Offense Code 2.6) charges, but did not impose a separate sanction for the obstruction of the OPR process charge (FBI Offense Code 2.11). OPR considered the Douglas factors, Parkinson's prior history of misusing a government credit card to make $2,500 in personal purchases, and aggravating and mitigating circumstances for each of the offenses, and concluded that dismissal was the appropriate penalty. The FBI thereafter dismissed Parkinson pursuant to the OPR report, and Parkinson appealed to the Board.
The Board affirmed the AJ's dismissal of Parkinson's whistleblower and USERRA affirmative defenses, relying on its prior decision in Van Lancker v. Department of Justice, 119 M.S.P.R. 514 (2013) that FBI agents were not entitled to such affirmative defenses under 5 U.S.C. § 7701(c)(2)(B) because the FBI is excluded from the definition of agency in 5 U.S.C. § 2302.
The Board did not sustain the theft charge because Parkinson did not have the specific intent required, and did not sustain the unprofessional conduct charge because Parkinson was not on duty during the alleged misconduct. The Board did sustain the obstruction charge because Parkinson " met with potential witnesses to ensure that they had their stories straight, and he persuaded a key witness to lock in his story by committing it to writing," with the result that the OIG could not obtain Rodda's and Rawls's " untainted recollection of events, but rather their recollection as affected by the appellant's efforts." J.A. 14. Though it concluded that " [t]he agency did not prove that the written statement he drafted for the landlord was incorrect or that he asked the landlord to lie about anything," J.A. 16, the Board decided that success in obstruction is not required to sustain the charge. The Board did not sustain the lack of candor charge for two of the specifications--holding that Parkinson did not lack candor in stating that the April 2010 document was a " mutual recollection[,]" and that Parkinson did not lack candor with regard to the reasons for his moving of the furniture. It did sustain the other two specifications--that Parkinson lacked candor by distinguishing between " telling" and " asking" Rodda and Rawls not to provide the receipts to the FBI, and that Parkinson lacked candor by failing to explain that Rodda's approval was in the form of ratification, not pre-expense approval.
Despite its dismissal of several of the charges, the Board sustained the OPR's removal penalty. The Board reconsidered the Douglas factors, noted the unique responsibilities of FBI agents, again considered the aggravating circumstance of Parkinson's prior disciplinary
record, the mitigating circumstance of Parkinson's prior record of military and FBI service, and that Parkinson believed he was the victim of improper whistleblower retaliation. The Board noted that many past removal cases " involved more egregious acts of falsification than the mischaracterizations or half-truths at issue here," but the Board nevertheless approved the removal penalty. The full Board on review added some analysis, adopted the initial decision, and came to the ...