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12/24/2012 12:41:00 PM
Court: Vernon Parker can't sue federal government

Howard Fischer
Capitol Media Services

PHOENIX -- A federal appeals court has thrown out a bid by former Paradise Valley mayor and recent congressional hopeful Vernon Parker to get $2 million from the federal government.

The 9th U.S. Circuit Court of Appeals did not address Parker's allegations that he was the victim of improper actions by employees of the Small Business Administration that resulted in what he claimed was a "biased, abusive and politically driven investigation' by an arm of that agency. The report produced, Parker said, resulted in "numerous scurrilous and unsupported allegations.'

According to Parker, the result was a decision to terminate a contract his company, VBP Group, had with the government even though the basis for that was not based in facts.

But the appellate panel, in an unsigned opinion, said Parker and his wife, Lisa, are not entitled to sue because the investigator had discretion over the inquiry and that it was "susceptible to a policy analysis.' And being a policy matter, the judges said, any actions the agency took are beyond the scope of their ability to review.

"The subjective motivations or procedural irregularities the Parkers allege are irrelevant, as this discretionary government function as a whole is excepted from the Federal Tort Claim Act's waiver of sovereign immunity,' the court wrote.

For the same reason, the judges said Parker could not sue the agency for negligently supervising its employees.

"The SBA's supervision of its staff is clearly a discretionary function, entails the consideration of policies and competing administrative and investigatory priorities, and is therefore immunized from liability,' the court said.

Attorney Shannon Clark said an appeal to the full 9th Circuit is likely.

He acknowledged the three-judge appellate panel reached the same legal conclusion as U.S. District Court Judge Susan Bolton who had previously dismissed Parker's claim. But Clark said that was a "bad decision' that should have been overturned.

Clark also disputed the federal government's contention that it could shield itself from suit in this case because the law says policy matters are beyond the reach of the courts.

"It's one thing to juggle balancing considerations,' he said, which is the purpose of the immunity. "But the idea that an agent would have discretion to put false information into a report and do that type of investigation just goes beyond the bounds of what we would think that (policy exemption) function was designed to protect.'

At the root of the lawsuit was an accusation accusing Parker of using political influence to obtain an SBA contract.

In 2008, the agency's Office of Inspector General published a report claiming, among other things, that contract approval was based on documents submitted by VBP "that were false or of questionable authenticity.' It also said Parker falsely certified he was not a federal employee at the time and the circumstances surrounding SBA's certification "were also unusual.'

Parker said the report, which remains on SBA's web site, contains "blatant omissions and false statements.'

Ultimately, Parker said, the SBA dismissed most of the allegations in the report because they were proven untrue. That left one: he was an employee with the U.S. Department of Agriculture at the time he applied for the contract.

The agency ultimately terminated a contract with his firm.

Parker's lawsuit seeks $2 million which he said is designed to compensate him. He claimed past and future medical expenses, loss of future wages, financial damages and "emotional harm and pain and suffering.'

His bio says he was the general counsel for the U.S. Office of Personnel Management and eventually became a special assistant to President George H.W. Bush. Parker subsequently was an assistant secretary to the U.S. Department of Agriculture.

He subsequently became a member of the Paradise Valley Town Council and served as mayor for two years.

Parker also was the Republican nominee for the new 9th Congressional District this year but lost the general election to Democrat Kyrsten Sinema.

Taylor Waste

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