will hear the final arguments today in number fifteen three zero six six parkinson against department of justice whenever you're ready this is because he was being too truthful the majority of the allegations the f b i brought against mr parkinson were never formally charged most of the charges were not sustained by the m s p the the two remaining charges of lack of candor and obstruction six months under the guise of conducting a whistle  compelled mr parkinson to an interview under oath in which he had to participate or face terminations he participated fully in that interview and the alleges s a geisha and a white investigator launched a series of false accusations including that he had stolen furniture which he did not including that he pocketed twelve hundred out told hundred dollars which he did not including that he missed you seventy seven thousand dollars which he did not mr parkinson's ny those allegations truthfully denied them and then the f b i fired him for quote a pattern of denying allegations really if you are denying also allegations then you are exhibiting a pattern of telling the truth that's why when you see what's left of the f b i original you misuse can't one of the lack of lack of candor faces but there's the separate obstruction basis of the financially getting to an important witness before the investigators couldn't get into the story memorialized and i'm glad you brought that up because your honor the obstruction charge is not obstruction at all because you cannot obstruct with the truth the statement that the landlord finds that mr parkinson helped him sign the landlord testified unequivocally that that's even was true that it was true at the time he signed it and it was true later at the here and he told the i g investigator that it was true you cannot obstruct with the truth what what would have happened had m with it and there is no objective evidence to disprove it so that what you've got to is a completely successful arranged bit of testimony that is that really not obstruction or can't be obstruction because you couldn't you couldn't disprove what the witness had been i mean i don't also conclusion that you know the concern here is that we'll never really know what the parties would have said because only the fact they have sort  of documented their testimony in a written document and we'll never know what they would have said without the document yes your honor but what else could they have said but the truth i guess we'll never know if it's never nice we'll never know what that contemporaneous with the facts we lady related in the statement correct no it wasn't and i was like three years later it was and let let me explain why mr parkinson went to mr other three years later officials were digging into everything he had conducted on this build out project which had been completed for a couple of years he did this is further retaliation he told the i g he viewed this is for the retaliation he was very concerned that that  to manipulate documents and retaliate against him now whether or not he was right is not at issue but that is his honestly held beliefs and so he went to the landlord to get a mutual recollection of what happened to account for the i management officials and that's another point on the obstruction charge that mr parkinson did not know that there was any o i g investigated targeting him and how would the elijah itself says it's not notify mr parkinson until may two thousand  so he did not know and it's important to note as well that the o and she doesn't handle the majority of f b i disciplinary cases the f b i has inspection division handles them so there's no reason for mr park in the us the f b i has inspections division i read the record in this and your brief governments brief and i thought i was reading two different stories it sounds like sounds like there are two different our concerns involved in this case there aren't are there well i think there's one parkinson who's you know a reserve colonel on active duty assigned to the  alfre operations officer very coarse out who's a decorated marine corps officer and then there's the mr parkinson who the three officials he accused of reprisal say misuse seventy seven thousand dollars which did not happen and not this brought concerns to his assistant special agent in charge per the f b i s whistleblower regulation that two pilots had been abusing the offsite and the furniture and bringing prostitutes back to the off site misusing f b i aircraft to solicit prostitutes he worked very hard to make that all using his furniture in the conduct of that he was that was at the old often he was concerned when his supervisory special agent said that she was going to allow the pilots access to the off site that he had taken it upon himself to make an operational off site after the last one was compromised that the pilots would go back to their own ways and abuse the furniture which was the landlord who he had a respectful relationship with so he was very frustrated that the pilots were going to be able to do this so he arranged for mr out of the move the furniture from the f b i also to mr rogers warehouse he thought mr rada owned the furniture because mr rada paid for nature and it's interesting because one away yes it has it's not an issue the only remaining issues are the lack of candor and the alleged obstruction with the truth of an investigation mr parkinson did not know existed so where lack of candor occurred when the employee signed a written statement that he had the opportunity to review mr parkinson is being held to saying ask instead of tell which are synonyms which is a distinction without a difference if i say to someone hold the elevator a  i don't know what the current lingo is some sort of command presence or something uses that there's a meaningful distinction between asking and tell there is except in this case there was no the government i'm sure is going to argue that mr parkinson had the influence of the landlord but that's simply not the case there's no evidence to suggest that mr parkinson was manipulating the mr parkinson was trying to convey the substance of the conversation and trying to convey that he didn't believe that he nor any other f b i management official asking for mr rogers records had the authority to demand that without a subpoena it wasn't about whether or not he was in a position of authority or had influence over mr rada or whether or not mr ruddock would comply with these requests it was about who had the authority to demand the receipt and in mr parkinson's mind that was the elijah in the context of the whistleblower reprisal investigation should be before you sit the nice reserve your time for rebuttal do you want to say a couple of words about the legal issue with the very back of of all of this about whether you know the whistleblower or the other established that he cannot do that and that m s p does not have jurisdiction to hear this however section seventy five thirteen grants appeal rights under section seventy seven zero one and section seventy seven no one has affirmative defenses congress could have limited those affirmative defenses for veterans it's certainly separated out veterans in section seventy five eleven but congress chose not to do that and as a as a preference eligible  i issues are going to be handled in out in the public proceeding that's that that seems to me to the rationale they used to distinguish the f b i circumstance from reprisal so to say that you can terminate someone and say that it's not whistleblowing reprisal but the employer is not allowed to counter that it's it's not logical and there's one other point about the affirmative defenses in addition to the twenty three zero to be there is an affirmative defense of acting not in accordance with the law and the board's jurisdiction here is over the removal but it's able to the board is able to evaluate all kinds of laws and agency regulations and rules it presides over collective bargaining agreements for example doesn't mean that an employee who doesn't suffer an adverse action can bring a collective bargaining lawsuit before the board but when suffering an adverse action when the board has jurisdiction over action it's allowed to analyze laws and regulations and as you said judge when there is a lot on the books and a regulation on the books present preventing whistleblower retaliation if the f b i and there's no danger here that there's going to be some flood of f b i employees because two point six broke false information includes false statements misrepresentations the failure to be fully forthright or the concealment or omission of a material fact flash information that i assume is the charge that you're being brought against him yes you're on the heading of that whole section is lack of candor yes your honor there's nothing in that offense so i can find a line dash under oath that's the title of the defense co two point six that's the title yes that's the title and that that is a standard offense code for the f b i and the definition of that is what is listed here have an element of deception without an intent to deceive well that's a good question i would say that the element of deception would involve providing an information that you know is be there will be an element of deception there is not an intent to deceive meaning there would not necessarily exactly whether they do that that was his lack of candor so there were two parts of his interview that were testimony to the oh i g e he said i did not ask for seeing i would not tell i asked he himself made that sanction this is not a something he was unaware of doing he clearly said no i did not tell i a himself made statements to the to the whitey and also to the ministry of judge that no i had no idea how the funds were being spent i was leaving this fall i was unaware i found out later  didn't have a problem with those spent expenditures but i was not involved in the process and that was not a completely forthcoming and forthright statement for mr parkinson to make and but the little it just has to fly that you know everything that was done was fine by me correct but that doesn't mean that so the the statement that was made by mr parkinson was that the landlord was the one controlling how the funds were being sent the landlord was the sole arbiter of how the funds were being spent and that was not  the complete truth and that's what we're talking about here we're talking about a special agent for the f b i who is involved in law enforcement launched and involved in investigations all the time know that he has held this high standard of being absolutely one hundred percent candid under oath does he understand at the time he made these statements that he was under investigation he had to have known i mean he even admitted that the reason why he for example met with the landlord to get their mutual recollections is that he knew that he was there were rampant rumors and there was there were false accusations that were being lodged against him by the f b i well that's part of the disciplinary process when you have the f b i notice something they report it to that gets reported to the oh i g do salvation they told him they were there investigating whistleblowers you know they absolutely at the beginning of the interview absolutely told mr parkinson that they were being investigated and he admits that they told they admitted to him that he was under investigation that was not the very end when he you know that was at the very beginning of the interview he was the beginning of the idea interview about there that's not what the record that's least it's not what he says he stated that at the beginning he found attorney he was aware before he made his statement that he was under investigation this was not some covert covert interview that was made by the way can i assume what is the strongest finding by the board with respect to his state of mind is the strongest finding by the board of his the state of mind up on the uncertainty about exactly what state of mind is required under ludlum maybe ludlum might be ministry of judge decision i do not believe there was a specific discussion of the knowingly verses and i think everyone understand their love and love was clear there doesn't have to be an intent to deceive i do i but i don't believe there was a study y g that he knowingly said i asked rather than told me that distinction and that was not fully forthcoming that was not the complete truth in fact it conflicted with mr mr oz statements to the multiple statement he knew that it's the end part i'm interested in but but the word deception could mean you know unintentional negligent misrepresentation i'm not sure where in these findings there is something about his state of mind with respect to the words that came out of his mouth accept that he knew that they were coming out of  have to hold for us because and then later on they say we ask you to hold for us what should we say should we prosecute counsels for deceptive behavior before the court as a do since the fact that this whole thing has us nels to it a little troubling i'm sure you must've smelled it as you worked on it because he accuses superiors in the system of of misbehavior and he is concerned about a whistle blowing situation and they send an investigator to talk to him about superiors who he is complained and now he gets fired for charges that are marginal and he's not allowed to bring before the charge decision maker the fact that he had formally complained about the conduct of the superiors who brought the final two argues against him do you think that has investigated the investigation started against him by the f b i which then is part of the disciplinary process so anything that he knew the f b i was looking into this is not you know a separate thing from the l i g but leaving that matter aside  for i lost my train of thought but mr mr parkinson was not investigated by the way he and the f b i and the idea until the new the new supervisor the supervisor came in and saw that there are regularities and why are you not writing why did you not provide the f b i of the receipts and he says because mr parkinson told them not to i was this is not this is not a situation this is a simple offense this is mr parkinson especially just for i not being fully forthcoming under oath it's a very serious offense extremely serious offense if mr parkinson had nothing to lose nothing that he was worried about he would have been completely forthcoming and he wouldn't have met with the landlord  have recovered if that that meeting in statement hadn't happened well i have great respect for the f b i and i'm certainly glad that they were looking into this but it's interesting that the serious charges that were brought against where i don't think it's confidential he was operating under cover and he's in charge of this undercover operation and doing everything off the books essentially well there were seats that were supposed to be into was this one twelve hundred dollar check for example and the f b i was never able to obtain the emptiness recollection of the landlord and his staff so who knows what it would have turned i were cheaper returns this again it's not a situation where the agency had the full information you know he had the full information that there was a certain amount of obstruction and i see that my time is way past i did want to add one thing unless you have further questions i do want to add one thing is that there is an error in our brief at the end that you se had just a couple things i wanted to raise on rebuttal there was discussion of the f b i having trouble finding the receipt i think it's important to point out that no one in the f b i ever asked mrs parkinson about that and in the record on appendix page three forty eight there's an e mail from mr parkinson choose a new team leader offering to assist him in any way possible that he would need it's taking over the s o g team i think that's a testament to which mr parkinson is the true one given that mr parkinson's whistleblowing things like i'm looking at this is a civilian there's something wrong with this i'm no lawyer either but i'm just saying it sounds fishy to me and mr parkinson was defending himself i think any employee would be hesitant to accept that investigators terminology if you do make an argument in your brief about state of mind with respect to obstruction do you hear mate and did you before the board make any kind of arguments about the state of mind with respect to the lack of of the language that judge slater pointed out about knowingly providing false information under oath and held the f b i to a higher of the kishen standard of proof before the board our argument was not on the distinction between lack of candor and also the cation but it was on the fact that there was no intent to deceive and that a lack of candor does have to include some element of deception and that the board ought for vice liberty as to what exactly that is given charge it has to be some sort of material fact simply a mistake as the justice department said cannot be a lack of candor no one can be one hundred percent complete and true and accurate one hundred percent of the time and so what became a real issue of an arbitrary decision because the next f b i employee who's charged with a violation of offense two point six label lack of candor slash lying under oath is not going to know before the board is they're going to require an intent to deceive or if they're