[00:00:19] Speaker 03:
We will hear the final argument today in number 15-3066, Parkinson against Department of Justice.

[00:00:30] Speaker 03:
Whenever you're ready, Ms.

[00:00:33] Speaker 03:
McClellan.

[00:00:59] Speaker 05:
May it please the court?

[00:01:00] Speaker 05:
My name is Kathleen McClellan, and I'm here representing the appellant, John Parkinson, in this case.

[00:01:05] Speaker 05:
The core of this case is very simple.

[00:01:07] Speaker 05:
The FBI fired Mr. Parkinson, a decorated Marine Corps veteran with over 20 years of government service, because he was being too truthful.

[00:01:16] Speaker 05:
The majority of the allegations the FBI brought against Mr. Parkinson were never formally charged.

[00:01:21] Speaker 05:
Most of the charges were not sustained by the MSPB.

[00:01:26] Speaker 05:
The two remaining charges of lack of candor and obstruction

[00:01:29] Speaker 05:
stem from an OIG investigation.

[00:01:32] Speaker 05:
And the context surrounding this OIG investigation is supremely important because this court ruled in Ludlam that a lack of candor charge depends on the context and the contours of the events.

[00:01:42] Speaker 02:
Speak up just a little bit.

[00:01:49] Speaker 05:
Mr. Parkinson first got involved with the OIG because he filed a whistleblowing reprisal complaint.

[00:01:55] Speaker 05:
He accused three officials of whistleblowing reprisal.

[00:01:58] Speaker 05:
The OIG interviewed those three officials in the context of that investigation and they unsurprisingly raised counter allegations against Mr. Parkinson.

[00:02:07] Speaker 05:
The OIG took it upon itself to investigate then Mr. Parkinson and launched a criminal investigation targeting him.

[00:02:14] Speaker 05:
However, the OIG investigator continued to meet with Mr. Parkinson for over six months under the guise of conducting a whistleblowing reprisal investigation.

[00:02:25] Speaker 05:
Then the OIG compelled Mr. Parkinson

[00:02:28] Speaker 05:
to an interview under oath in which he had to participate or face termination.

[00:02:32] Speaker 05:
He participated fully in that interview.

[00:02:34] Speaker 05:
And the OIG investigator launched a series of false accusations, including that he had stolen furniture, which he did not, including that he'd pocketed $1,200, which he did not, including that he misused $77,000, which he did not.

[00:02:50] Speaker 05:
Mr. Parkinson denied those allegations, truthfully denied them.

[00:02:54] Speaker 05:
And then the FBI fired him for, quote, a pattern of denying allegations.

[00:02:59] Speaker 05:
Really, if you're denying false allegations, then you are exhibiting a pattern of telling the truth.

[00:03:06] Speaker 05:
That's why when you see what's left of the FBI's original, you misused $77,000 case against Mr. Parkinson, you see that the lack of candor charge is based on the difference between ask and tell.

[00:03:19] Speaker 03:
Well, that's one of the things, right?

[00:03:22] Speaker 03:
I mean, that's one of the lack of candor

[00:03:28] Speaker 03:
bases, but there's the separate obstruction basis of essentially getting to an important witness before the investigators could and getting the story memorialized.

[00:03:40] Speaker 05:
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.

[00:03:49] Speaker 05:
The statement that the landlord signed, that Mr. Parkinson helped him sign, the landlord testified unequivocally

[00:03:56] Speaker 05:
that that statement was true and that it was true at the time he signed it and it was true later at the hearing.

[00:04:03] Speaker 05:
And he told the IG investigator that it was true.

[00:04:06] Speaker 05:
You cannot obstruct with the truth.

[00:04:08] Speaker 05:
What would have happened had Mr. Parkinson not met with him?

[00:04:11] Speaker 05:
He would have said more truth, less truth.

[00:04:13] Speaker 05:
The FBI did not prove that that statement was false.

[00:04:16] Speaker 05:
In fact, the AJ found, the administrative judge found that the FBI did not prove that that statement is false.

[00:04:22] Speaker 03:
Moreover, how do you distinguish that from a situation, how do you distinguish this situation from one in which you get to a witness, you arrange the story and then that witness sticks with it and there's no objective evidence to disprove it so that

[00:04:49] Speaker 03:
What you've got is a completely successful arranged bit of testimony.

[00:04:58] Speaker 03:
Is that really not obstruction or can't be obstruction because you couldn't disprove what the witness had been?

[00:05:07] Speaker 03:
Anyway, you understand.

[00:05:10] Speaker 05:
I don't think that is obstruction, your honor.

[00:05:12] Speaker 05:
I think that to have obstruction, you have to prove some sort of intent to

[00:05:17] Speaker 05:
not have the truth.

[00:05:19] Speaker 05:
And the administrative judge actually found that the statement was true and that the FBI did not prove that the statement was untrue.

[00:05:26] Speaker 05:
And the FBI has the burden to prove this charge.

[00:05:29] Speaker 03:
Did the administrative judge find actually the first of those things, that the statement was true as opposed to the FBI just didn't prove it was false?

[00:05:36] Speaker 03:
The second one, yes.

[00:05:38] Speaker 01:
And there's no evidence.

[00:05:39] Speaker 01:
Wasn't there also a conclusion that the concern here is that we'll never really know

[00:05:45] Speaker 01:
what the parties would have said, because in a way, in effect, they have sort of documented their testimony in a written document and we'll never know what they would have said without that document.

[00:06:02] Speaker 05:
Yes, Your Honor, but what else could they have said but the truth?

[00:06:05] Speaker 05:
I guess we'll never know if they would have lied.

[00:06:08] Speaker 01:
We'll never know what that quote unquote truth might have been.

[00:06:14] Speaker 05:
But that doesn't imply that there was any obstruction if we don't, I mean, we know what the truth was because the only evidence points to the fact that the statement was true.

[00:06:24] Speaker 01:
This statement that the party signed was not one contemporaneous with the facts relating, related in this statement, correct?

[00:06:35] Speaker 01:
No, it wasn't.

[00:06:35] Speaker 01:
And it was like three years later.

[00:06:37] Speaker 05:
It was.

[00:06:38] Speaker 05:
And let, let me explain why Mr. Parkinson went to Mr. Rada three years later.

[00:06:43] Speaker 05:
Mr. Parkinson was concerned that the FBI management officials, specifically the supervisory special agent who he accused of reprisal, they were launching this retroactive investigation.

[00:06:55] Speaker 05:
The FBI management officials, not the OIG, the FBI management officials were digging into everything he had conducted on this buildout project which had been completed for a couple of years.

[00:07:04] Speaker 05:
He viewed this as further retaliation.

[00:07:06] Speaker 05:
He told the IG he viewed this as further retaliation.

[00:07:09] Speaker 05:
He was very concerned that, that Ms.

[00:07:12] Speaker 05:
Lucero was going to manipulate documents and retaliate against him.

[00:07:15] Speaker 05:
Now, whether or not he was right is not at issue, but that is his honestly held belief.

[00:07:21] Speaker 05:
And so he went to the landlord to get a mutual recollection of what happened to account for the FBI management officials.

[00:07:30] Speaker 05:
And that's another point on the obstruction charges that Mr. Parkinson did not know.

[00:07:34] Speaker 05:
that there was any OIG investigated targeting him.

[00:07:37] Speaker 05:
And how would he?

[00:07:37] Speaker 05:
The OIG itself says it did not notify Mr. Parkinson until May, 2010.

[00:07:43] Speaker 05:
So he did not know.

[00:07:44] Speaker 05:
And it's important to note as well that the OIG doesn't handle the majority of FBI disciplinary cases.

[00:07:51] Speaker 05:
The FBI's inspection division handles them.

[00:07:54] Speaker 05:
So there's no reason for Mr. Parkinson.

[00:07:56] Speaker 02:
The FBI what?

[00:07:56] Speaker 05:
The FBI's inspection division handles them.

[00:07:59] Speaker 05:
So there's no reason for Mr. Parkinson to think

[00:08:02] Speaker 05:
that the OIG was looking into anything but whistleblowing reprisals.

[00:08:05] Speaker 05:
And in that investigation, he was a witness and a complainant and was never told not to talk to anybody else.

[00:08:12] Speaker 02:
You know, when I read the record in this and your brief and the government's brief, and I thought I was reading two different stories, it sounds like

[00:08:29] Speaker 02:
Nobody, it sounds like there are two different Parkinson's involved in this case.

[00:08:35] Speaker 02:
There aren't, are there?

[00:08:37] Speaker 05:
Well, I think there's one Parkinson who's a reserve colonel on active duty assigned to the expeditionary operations, assigned as expeditionary operations officer, Marine Corps South, who's a decorated Marine Corps officer.

[00:08:50] Speaker 05:
And then there's the Mr. Parkinson who the three officials he accused of reprisals say misused $77,000, which did not happen.

[00:08:59] Speaker 05:
And that's this entire, all the, all of the allegations in the OIG investigation are built on a communication that he misused the $77,000.

[00:09:07] Speaker 02:
It's completely- There's apparently some ruckus about furniture.

[00:09:11] Speaker 05:
Yes.

[00:09:13] Speaker 05:
The FBI falsely accused Mr. Parkinson of theft of stealing furniture.

[00:09:17] Speaker 05:
The MSPB did not sustain that charge and the charge is not before this court now.

[00:09:23] Speaker 05:
What happened with the furniture was Mr. Parkinson had

[00:09:29] Speaker 05:
brought concerns to his assistant special agent in charge for the FBI's whistleblower regulation that two pilots had been abusing the offsite and the furniture and bringing prostitutes back to the offsite and misusing FBI aircraft to solicit prostitutes.

[00:09:49] Speaker 05:
He worked very hard to make that offsite.

[00:09:50] Speaker 02:
Abusing his furniture and the conduct of that.

[00:09:53] Speaker 05:
That was at the old offsite and he was concerned when his supervisory special agent said,

[00:09:59] Speaker 05:
that she was going to allow the pilots access to the offsite that he had taken it upon himself to make an operational offsite after the last one was compromised, that the pilots would go back to their old ways and abuse the furniture, which belonged to the landlord who he had a respectful relationship with.

[00:10:16] Speaker 05:
So he was very frustrated that the pilots were going to be able to do this.

[00:10:21] Speaker 05:
So he arranged for Mr. Rada to move the furniture from the FBI offsite to Mr. Rada's warehouse.

[00:10:27] Speaker 05:
He thought Mr. Rada owned the furniture because Mr. Rada paid for the furniture.

[00:10:31] Speaker 05:
And it's interesting because Mr. Rada told the IG that he expected that the FBI would return the furniture when the lease was up, but the FBI never did that and never paid him for it.

[00:10:44] Speaker 05:
But nonetheless, Mr. Parkinson was charged with theft.

[00:10:46] Speaker 05:
But the MSPB found that he had no intent to steal.

[00:10:50] Speaker 02:
And that issue went away.

[00:10:51] Speaker 05:
Yes, it's not an issue.

[00:10:54] Speaker 05:
The only remaining issues are the lack of candor

[00:10:56] Speaker 05:
and the alleged obstruction with the truth of an investigation Mr. Parkinson did not know existed.

[00:11:04] Speaker 05:
And on the lack of candor point, it's important to note that this court in Ludlam ruled that it depends on the contours and elements in a particular context.

[00:11:13] Speaker 05:
And the interrogation that the NIGI investigator conducted was a hostile interrogation.

[00:11:20] Speaker 05:
He interrupted Mr. Parkinson.

[00:11:21] Speaker 05:
He told him he could not mention the whistleblowing reprisal case.

[00:11:25] Speaker 05:
It was not as though it was a friendly interview.

[00:11:28] Speaker 05:
It was a compelled interview.

[00:11:30] Speaker 05:
And that's very different from Ludlum, where lack of candor occurred when the employee signed a written statement that he had the opportunity to review.

[00:11:39] Speaker 05:
Mr. Parkinson is being held to saying ask instead of tell, which are synonyms, which is a distinction without a difference.

[00:11:46] Speaker 05:
If I say to someone, hold the elevator, am I asking them or telling them?

[00:11:50] Speaker 03:
Well, it depends whether you're in a position of authority.

[00:11:52] Speaker 03:
Well, I suppose, isn't that somewhere important here that the FBI officer who's probably pretty well trained to, I don't know what the current lingo is, some sort of command presence or something, uses that.

[00:12:11] Speaker 03:
There's a meaningful distinction between asking and telling.

[00:12:18] Speaker 05:
There is, except

[00:12:21] Speaker 05:
In this case, the government, I'm sure, is going to argue that Mr. Parkinson had this influence over the landlord.

[00:12:28] Speaker 05:
But that's simply not the case.

[00:12:30] Speaker 05:
There's no evidence to suggest that Mr. Parkinson was manipulating the landlord.

[00:12:33] Speaker 05:
The landlord testified they had a professional relationship, that he would have raised any concerns if he did.

[00:12:38] Speaker 05:
And not accepting the hostile interrogator's word of ass,

[00:12:46] Speaker 05:
or of tell and instead saying, no, I asked him.

[00:12:48] Speaker 05:
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 FBI management official asking for Mr. Rada's records had the authority to demand them without a subpoena.

[00:13:00] Speaker 05:
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. Rada would comply with this request.

[00:13:08] Speaker 05:
It was about who had the authority to demand the receipts.

[00:13:12] Speaker 05:
And in Mr. Parkinson's mind,

[00:13:14] Speaker 05:
That was the OIG in the context of the whistleblower reprisal investigation.

[00:13:18] Speaker 03:
Before you sit down, then reserve your time for rebuttal.

[00:13:22] Speaker 03:
Do you want to say a couple of words about the legal issue at the very back of all of this about whether either the whistleblower or the other statutory arguments can be presented as defenses?

[00:13:36] Speaker 05:
Absolutely.

[00:13:36] Speaker 05:
Thank you, Your Honor.

[00:13:38] Speaker 05:
The judge dismissed the usher and whistleblower and reprisal defenses very early on in the case and restricted discovery in accordance with that ruling.

[00:13:48] Speaker 05:
However, the statutory argument is very simple and clear because it's simply based on the words of the statute.

[00:13:55] Speaker 05:
Section 7511 grants veterans appeal rights that other FBI employees do not have.

[00:14:03] Speaker 05:
That's 7511B8.

[00:14:05] Speaker 05:
They have rights that other FBI's do not have.

[00:14:08] Speaker 05:
Mr. Parkinson is not claiming that he should be able to bring a separate USERRA claim or a separate whistleblower claim.

[00:14:14] Speaker 05:
It's well established that he cannot do that and that the MSPB does not have jurisdiction to hear this.

[00:14:20] Speaker 05:
However, Section 7513 grants appeal rights under Section 7701.

[00:14:26] Speaker 05:
And Section 7701 has affirmative defenses.

[00:14:30] Speaker 05:
Congress could have limited those affirmative defenses for veterans.

[00:14:34] Speaker 05:
It certainly separated out veterans

[00:14:36] Speaker 05:
in section 7511, but Congress chose not to do that.

[00:14:41] Speaker 01:
And as a preference eligible FBI agent, he had a right to appeal to the MSPB.

[00:14:48] Speaker 03:
Absolutely.

[00:14:48] Speaker 01:
So the argument then is that he has a right to appeal what restricts his right to defend himself and assert whatever defenses he might want.

[00:15:00] Speaker 05:
Absolutely, your honor.

[00:15:01] Speaker 05:
And that's especially poignant with the USERA defense since it's his veteran status that gives him the right to appeal.

[00:15:07] Speaker 01:
Now, the board in the Van Lankert case said otherwise, at least the majority did.

[00:15:16] Speaker 01:
Why do you believe that's wrong?

[00:15:19] Speaker 01:
Or what's wrong with that analysis?

[00:15:21] Speaker 05:
The board departed from its longstanding precedent in Butler versus the US Postal Service.

[00:15:26] Speaker 05:
and in MAC versus the U.S.

[00:15:27] Speaker 05:
Postal Service, in which the board said that postal employees, even though exempt from the Whistleblower Protection Act and exempt from Section 5-2302B, could assert affirmative defenses on the ground.

[00:15:41] Speaker 01:
There is an argument that, well, postal workers are different from FBI agents, and the fact that Congress passed a separate whistleblower statute for FBI agents

[00:15:53] Speaker 01:
under the rules established by the attorney general means that Congress made it clear that FBI issues are going to be handled in house, not in a public proceeding.

[00:16:08] Speaker 01:
That seems to me to be the rationale they used to distinguish the FBI circumstance from a postal worker circumstance.

[00:16:17] Speaker 01:
Am I correct?

[00:16:18] Speaker 05:
That's the rationale they used.

[00:16:20] Speaker 01:
The problem I'm having with that is that if

[00:16:23] Speaker 01:
If the rationale was that Congress made it clear that FBI agents, all of that would, disputes would be handled in house, so to speak, then what about the fact that Congress made it clear that preference eligible FBI agents could proceed with a case, a claim before the MSPB, which presumably would air whatever dirty laundry might be out there involved in that case.

[00:16:51] Speaker 05:
I couldn't have said it better myself, Judge, but also I think the OIG report that led to the termination actually made findings on whistleblowing reprisal.

[00:17:00] Speaker 05:
So to say that you can terminate someone and say that it's not whistleblowing reprisal but the employee is not allowed to counter that, it's not logical.

[00:17:12] Speaker 05:
There's one other point about the affirmative defenses.

[00:17:14] Speaker 05:
In addition to the 2302B, there is an affirmative defense of acting not in accordance with the law.

[00:17:21] Speaker 05:
The board's jurisdiction here is over the removal, but the board is able to evaluate all kinds of laws and agency regulations and rules.

[00:17:29] Speaker 05:
It presides over collective bargaining agreements, for example.

[00:17:33] Speaker 05:
It doesn't mean that an employee who doesn't suffer an adverse action

[00:17:36] Speaker 05:
can bring a collective bargaining lawsuit before the board.

[00:17:39] Speaker 05:
But when suffering an adverse action, when the board has jurisdiction over an action, it's allowed to analyze laws and regulations.

[00:17:46] Speaker 05:
And as you said, Judge Lynn, there is a law on the books and a regulation on the books preventing whistleblower retaliation at the FBI.

[00:17:54] Speaker 05:
And there's no danger here that there's going to be some flood of FBI employees because there just simply aren't that many that are also preference eligible veterans with board appeal rights.

[00:18:04] Speaker 03:
Ms.

[00:18:05] Speaker 03:
McClelland, I'll restore your rebuttal time.

[00:18:08] Speaker 03:
Thank you, Your Honor.

[00:18:14] Speaker 03:
Ms.

[00:18:14] Speaker 03:
Devine.

[00:18:22] Speaker 02:
Ms.

[00:18:22] Speaker 02:
Devine, could we begin by first talking about legal questions that we have here?

[00:18:30] Speaker 02:
And let me invite your attention to this lack of candor charge.

[00:18:38] Speaker 02:
I have the letter of April 26, 2012 that was written to Mr. Parkinson.

[00:18:47] Speaker 02:
And in that letter, it says, according to FBI offense code 2.6,

[00:18:55] Speaker 02:
Dismissal is warranted when an employee, quote, knowingly provides false information in a verbal or written statement made under oath, unquote.

[00:19:06] Speaker 02:
For the purpose of offense code 2.6, quote, false information includes false statements, misrepresentations, the failure to be fully forthright, or the concealment or omission of a material fact slash information.

[00:19:24] Speaker 02:
That, I assume, is the charge.

[00:19:25] Speaker 02:
that's being brought against him.

[00:19:27] Speaker 00:
Yes, Your Honor.

[00:19:28] Speaker 02:
The heading of that whole section is lack of candor.

[00:19:32] Speaker 00:
Yes, Your Honor.

[00:19:33] Speaker 02:
There's nothing in that offense code.

[00:19:37] Speaker 02:
I can't find lack of candor in the offense code.

[00:19:41] Speaker 02:
Where does lack of candor and whatever lack of candor means come from?

[00:19:47] Speaker 04:
FBI offense code 2.6 is titled Lackander slash Line dash under oath.

[00:19:55] Speaker 04:
That's the title of the FBI offense code 2.6.

[00:19:57] Speaker 02:
That's the title.

[00:19:58] Speaker 04:
Yes, that's the title.

[00:19:59] Speaker 04:
And that is a standard offense code for the FBI.

[00:20:04] Speaker 04:
And the definition of that is what is listed here under FBI offense code 2.6.

[00:20:10] Speaker 04:
That is the definition of the lack of candor.

[00:20:14] Speaker 02:
So the title doesn't need to be part of the definition of what the offense is?

[00:20:21] Speaker 04:
Well, so there are several parts to a charge, right, Your Honor?

[00:20:25] Speaker 04:
There's the title and there's the definition of the charge, and there's also the narrative.

[00:20:29] Speaker 04:
So it's read in totality, but the charge itself was entitled lack of candor, but it fell under 2.6, which is... But it is part of 2.6.

[00:20:39] Speaker 04:
Yes, your honor.

[00:20:40] Speaker 04:
Yes, your honor.

[00:20:41] Speaker 02:
2.6 is quite clear.

[00:20:43] Speaker 02:
Knowingly provides, yada, yada, yada, yada.

[00:20:47] Speaker 02:
Knowingly.

[00:20:48] Speaker 00:
Yes, your honor.

[00:20:49] Speaker 02:
That's an interesting word.

[00:20:51] Speaker 02:
Right.

[00:20:51] Speaker 02:
It usually means conscious, intentional, purposeful.

[00:20:59] Speaker 02:
Right.

[00:20:59] Speaker 02:
Knowingly.

[00:21:01] Speaker 04:
Knowingly.

[00:21:01] Speaker 04:
Yes, your honor.

[00:21:02] Speaker 02:
Knowingly.

[00:21:02] Speaker 02:
So he had to know that he was engaged in a lack of candor.

[00:21:08] Speaker 04:
Yes, your honor.

[00:21:09] Speaker 04:
There has to be an element of deception as this court recognized in Ludlam.

[00:21:14] Speaker 02:
Deception?

[00:21:15] Speaker 04:
Correct.

[00:21:16] Speaker 04:
An element of deception, but not an intent to deceive as it was involved in falsification.

[00:21:21] Speaker 02:
Hold it.

[00:21:21] Speaker 02:
Wait a minute.

[00:21:21] Speaker 02:
You say there has to be an element of deception, but not an intent to deceive?

[00:21:26] Speaker 04:
Yes.

[00:21:26] Speaker 04:
That's what the court in Ludlam specifically made that distinction.

[00:21:30] Speaker 02:
I know that's what the court in Ludlam said, and I have no idea what they mean by that.

[00:21:35] Speaker 02:
Perhaps you can help me.

[00:21:36] Speaker 02:
How can you have an element of deception without an intent to deceive?

[00:21:43] Speaker 04:
Well, that's a good question.

[00:21:46] Speaker 04:
I would say that the element of deception would involve providing some information that you know is not 100% true.

[00:21:54] Speaker 04:
And maybe you are trying to reduce your culpability and make it seem like you're not as

[00:22:02] Speaker 04:
as guilty as it appears.

[00:22:04] Speaker 02:
And you do that intentionally?

[00:22:06] Speaker 04:
Well, you do that intentionally, but intent to deceive mainly.

[00:22:08] Speaker 02:
So we need to find the relevant intent to do this, don't we?

[00:22:12] Speaker 02:
This is not a no fault penalty.

[00:22:17] Speaker 02:
This is not a life driving.

[00:22:20] Speaker 02:
It's not a no fault situation.

[00:22:22] Speaker 02:
That is, you don't intend to have an accident necessarily, but you still may be liable for it.

[00:22:30] Speaker 02:
But this is a case where you can't be liable unless you do something knowingly.

[00:22:34] Speaker 04:
Correct.

[00:22:35] Speaker 04:
There would have to be a knowing... Deceitfully.

[00:22:37] Speaker 04:
There would be an element of deception.

[00:22:39] Speaker 04:
There is not an intent to deceive, meaning there would not necessarily... Exactly what did he do that was his lack of candor?

[00:22:48] Speaker 04:
So there were two parts of his interview that were sustained.

[00:22:52] Speaker 04:
The two specifications from his interview... Tell me if I'm not speaking loud enough, but there are two specifications from an interview that were sustained

[00:22:59] Speaker 04:
One was a distinction that Mr. Parkinson himself made in his testimony to the OIG.

[00:23:07] Speaker 04:
He said, I did not ask, or excuse me, I did not tell, I asked.

[00:23:12] Speaker 04:
He himself made that distinction.

[00:23:14] Speaker 04:
This is not something he was unaware of doing.

[00:23:16] Speaker 04:
He clearly said, no, I did not tell, I asked.

[00:23:21] Speaker 04:
But then later in his testimony before the administrative judge, he admitted that he directed

[00:23:25] Speaker 04:
the landlord to withhold the receipts from the FBI.

[00:23:31] Speaker 04:
The second instance is when Mr. Parkinson made the statement that nothing was done, this is before the OIG, nothing was done without the landlord's knowledge and that the landlord was the sole arbiter of the spending of the tenant improvement funds.

[00:23:48] Speaker 04:
In fact, the landlord himself

[00:23:51] Speaker 04:
made statements to the OIG and also to the administrative judge that, no, I had no idea how the funds were being spent.

[00:23:59] Speaker 04:
I was leaving this all.

[00:24:02] Speaker 04:
I was unaware.

[00:24:03] Speaker 04:
I found out later I didn't have a problem with those spent expenditures, but I was not involved in the process.

[00:24:10] Speaker 04:
And that was not a completely forthcoming and forthright statement for Mr. Parkinson to make.

[00:24:16] Speaker 01:
But the landlord did testify that everything that was done was fine by me.

[00:24:21] Speaker 04:
Correct, but that doesn't mean that, so the statement that was made by Mr. Parkinson was that the landlord was the one controlling how the funds were being spent.

[00:24:30] Speaker 04:
The landlord was the sole arbiter of how the funds were being spent, and that was not the complete truth.

[00:24:37] Speaker 04:
And that's what we're talking about here.

[00:24:38] Speaker 04:
We're talking about a special agent for the FBI who is involved in law enforcement and involved in investigations all the time.

[00:24:47] Speaker 04:
It knows that he has held to this high standard of being absolutely 100% candid under oath.

[00:24:52] Speaker 02:
Did he understand at the time he made these statements that he was under investigation?

[00:24:57] Speaker 04:
He had to have known.

[00:24:58] Speaker 04:
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 rancid rumors and there were false accusations that were being lodged against him by FBI.

[00:25:11] Speaker 04:
Well, that's part of the disciplinary process.

[00:25:13] Speaker 04:
When you have the FBI notice something, they report it to, that it gets reported to the OIG.

[00:25:19] Speaker 04:
The OIG does the investigation.

[00:25:21] Speaker 02:
Was the OIG engaged in interviewing him for a potential criminal charge at the time without informing him that they had shifted sides?

[00:25:33] Speaker 02:
The OIG originally came in

[00:25:36] Speaker 02:
to investigate his whistleblowing claims, didn't they?

[00:25:39] Speaker 04:
Yes.

[00:25:40] Speaker 04:
Yes.

[00:25:40] Speaker 04:
But it was also, the OIG was also investigating from a report from the FBI, investigating Mr. Parkinson for misuse of funds.

[00:25:49] Speaker 04:
But they didn't tell him that.

[00:25:51] Speaker 02:
They told him they were there investigating the whistleblowing.

[00:25:55] Speaker 04:
No, they absolutely, at the beginning of the interview, absolutely told Mr. Parkinson that they were being investigated.

[00:25:59] Speaker 04:
He admits that they admitted

[00:26:02] Speaker 04:
to him that he was under investigation.

[00:26:04] Speaker 02:
That was at the very end when he... No, that was at the very beginning of the interview.

[00:26:08] Speaker 02:
At the beginning of the OIG interview... That's not what the record says.

[00:26:14] Speaker 02:
At least it's not what he says.

[00:26:17] Speaker 04:
He stated that at the beginning he found that the

[00:26:22] Speaker 04:
The OIG said, he asked them, are you under investigation?

[00:26:25] Speaker 04:
The OIG said, am I under investigation?

[00:26:27] Speaker 04:
The OIG said yes.

[00:26:29] Speaker 02:
Yeah, but that was after so many months of the OIG meeting with him on a regular basis to talk to him about his charges that there was a whistle blowing problem.

[00:26:40] Speaker 04:
I see.

[00:26:40] Speaker 04:
I'm talking about the OIG interview.

[00:26:42] Speaker 04:
I misunderstood.

[00:26:44] Speaker 04:
Before he had the OIG interview, which by the way, he was represented by counsel and he himself is an attorney.

[00:26:50] Speaker 04:
He was aware before he made his statements that he was under investigation.

[00:26:54] Speaker 04:
This was not some covert interview that was made by the OIG.

[00:27:00] Speaker 03:
Can I ask you, what is the strongest finding by the board with respect to his state of mind?

[00:27:08] Speaker 04:
the strongest finding by the board of his state of mind.

[00:27:10] Speaker 03:
This picks up on the uncertainty about exactly what state of mind is required under Ludlum.

[00:27:18] Speaker 03:
Maybe Ludlum might be read in a number of different ways.

[00:27:23] Speaker 03:
Did the board ever find

[00:27:26] Speaker 03:
either with respect to, I guess, whether two lacks of candor and one obstruction.

[00:27:31] Speaker 03:
Correct.

[00:27:32] Speaker 03:
What were the mental element findings by the board or by the administrative judge?

[00:27:38] Speaker 04:
I'm not aware that that issue was up.

[00:27:41] Speaker 04:
And in fact, that issue is... Sorry, I'm unaware of where in the administrative judge's decision.

[00:27:50] Speaker 04:
I do not believe there was a specific discussion

[00:27:52] Speaker 04:
of the knowingly versus... I think everyone understands when their love and loveliness is clear, there doesn't have to be an intent to deceive.

[00:28:02] Speaker 04:
But I don't believe there was a specific... But it has to be deceptive.

[00:28:05] Speaker 04:
There is an element of deception.

[00:28:07] Speaker 02:
Correct.

[00:28:07] Speaker 02:
And what is the board's finding on the element of deception?

[00:28:11] Speaker 04:
That Mr. Parkinson knew that when he was testifying to the OIG or having his statement under oath to the OIG, that he knowingly said,

[00:28:20] Speaker 04:
I asked rather than told made that distinction, and that was not fully forthcoming.

[00:28:25] Speaker 04:
That was not the complete truth.

[00:28:27] Speaker 04:
In fact, it conflicted with Mr. Rada's multiple statements to the OIG in its investigation.

[00:28:36] Speaker 03:
I'm sorry.

[00:28:37] Speaker 03:
So you used the word no.

[00:28:40] Speaker 03:
Can you point to something where the board says the words that came out of his mouth conveyed a wrong impression, and he knew that?

[00:28:50] Speaker 03:
It's the and part I'm interested in.

[00:28:56] Speaker 03:
So I apologize.

[00:28:57] Speaker 04:
So the board does note that Mr. Parkinson himself made that distinction.

[00:29:08] Speaker 04:
And I'm trying to find here.

[00:29:10] Speaker 03:
Is A41?

[00:29:12] Speaker 04:
Yes, I'm looking at A41.

[00:29:16] Speaker 03:
But almost 50% of the way down?

[00:29:26] Speaker 04:
Right.

[00:29:28] Speaker 04:
Yes, claiming the ass multitude.

[00:29:31] Speaker 04:
I don't think there was necessarily an affirmative finding as to the state of mind that needed to be provided, but it involved... Obviously what I'm thinking about is there's something, there's some mental element in lack of candor.

[00:29:49] Speaker 03:
Candor does have something to do with what you understand.

[00:29:53] Speaker 04:
It cannot be just a mistake.

[00:29:55] Speaker 03:
But the word deception could mean unintentional negligent misrepresentation.

[00:30:05] Speaker 03:
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.

[00:30:16] Speaker 03:
Except that he knew that they were coming out of his mouth.

[00:30:25] Speaker 04:
I don't see an affirmative statement that looks at Mr. Parkinson's state of mind here.

[00:30:35] Speaker 02:
But the difference between his saying, I asked and I told, those are the

[00:30:44] Speaker 04:
Yeah.

[00:30:44] Speaker 04:
I mean, that, that is, that is a hundred percent clear.

[00:30:46] Speaker 04:
The fact that he was actually himself making that distinction.

[00:30:49] Speaker 02:
What would we do?

[00:30:50] Speaker 02:
What should we do if we have a brief in front of us in which counsel says you have to hold for us because, and then later on they say, we asked you to hold for us because what should we, should we prosecute counsel for deceptive behavior before the court?

[00:31:10] Speaker 04:
No, I wouldn't.

[00:31:12] Speaker 04:
Absolutely not.

[00:31:14] Speaker 02:
You've read your brief, haven't you?

[00:31:16] Speaker 04:
I know, exactly, exactly.

[00:31:18] Speaker 04:
No, I would... First of all... There's a big difference between what we have to do and what we're asked to do.

[00:31:26] Speaker 04:
I'm not reporting the events of... First of all, I'm not a special agent for the FBI, reporting the events of my interaction with a landlord on

[00:31:37] Speaker 04:
facts that are, excuse me, documents that the FBI requested and were not provided.

[00:31:42] Speaker 04:
I'm not, first of all, I'm not under oath.

[00:31:45] Speaker 04:
I'm not making a statement as an FBI employee under oath to the OIG.

[00:31:50] Speaker 04:
I mean, clearly I signed under Rule 11, but it's not the, it's not the, an invalid situation.

[00:31:56] Speaker 02:
I would hold you to a higher standard than I would hold an FBI agent as a general proposition.

[00:32:02] Speaker 04:
Oh, well that's actually very nice.

[00:32:04] Speaker 04:
But I think that,

[00:32:06] Speaker 02:
We don't need to pursue that particular analogy any further.

[00:32:10] Speaker 02:
I just make the point that it seems to me that we all use these verbs in a variety of ways.

[00:32:20] Speaker 02:
Let's move to the question of why he can't use as a defense the fact that this whole thing has a smell to it that's a little troubling.

[00:32:34] Speaker 02:
sure you must have smelled it as you worked on it, because he accuses his superiors in the system of misbehavior.

[00:32:47] Speaker 02:
And he is concerned about a whistleblowing situation.

[00:32:51] Speaker 02:
They send in an investigator to talk to him about his accusations and his whistleblowing claim.

[00:32:59] Speaker 02:
Unbeknownst to him, the investigator starts investigating him.

[00:33:04] Speaker 02:
for criminal behavior sponsored by the very same superiors who he has complained about.

[00:33:13] Speaker 02:
And now he gets fired for charges that are at best marginal.

[00:33:23] Speaker 02:
And he's not allowed to bring before the charge decision maker the fact that he had formally complained about the conduct

[00:33:33] Speaker 02:
of the superiors who brought the final charges against him.

[00:33:38] Speaker 02:
Do you think that has a smell to it that we need to be concerned about?

[00:33:43] Speaker 04:
I don't think so at all, Your Honor.

[00:33:44] Speaker 04:
At first glance, there's a lot to say, and I have 20 seconds.

[00:33:52] Speaker 04:
So Mr. Parkinson was only investigated.

[00:33:56] Speaker 04:
The investigation started against him by the FBI, which then is part of the disciplinary process.

[00:34:01] Speaker 04:
him saying that he knew the FBI was looking into this is not a separate thing from the OIG.

[00:34:05] Speaker 04:
But leaving that matter aside, I lost my train of thought.

[00:34:11] Speaker 04:
But Mr. Parkinson was not investigated by the OIG and the FBI and the OIG until the new supervisor came in and saw that there were irregularities and requested receipts from the landlord.

[00:34:27] Speaker 04:
And the landlord told Mr.

[00:34:31] Speaker 04:
the FBI that Mr. Parkinson evaded the FBI multiple times.

[00:34:41] Speaker 04:
The FBI asked for those receipts, and that's when the feelers went up.

[00:34:44] Speaker 04:
That's when things became problematic for the FBI and when the FBI reported it to the OIG.

[00:34:50] Speaker 04:
The OIG interviewed the landlord, Mr. Rodda, and said, why did you not provide the FBI the receipts?

[00:34:58] Speaker 04:
And he says, because Mr. Parkinson told them not to.

[00:35:03] Speaker 04:
This is not a situation where this is a simple offense.

[00:35:06] Speaker 04:
This is Mr. Parkinson, a special agent for the FBI, not being fully forthcoming under oath.

[00:35:11] Speaker 04:
It's a very serious offense.

[00:35:13] Speaker 04:
It's an extremely serious offense.

[00:35:15] Speaker 04:
If Mr. Parkinson had nothing that he was worried about, he would have been completely forthcoming.

[00:35:20] Speaker 04:
And he wouldn't have met with the landlord to draft a statement.

[00:35:27] Speaker 04:
The details of which later could not be fully recalled by the landlord and his staff, but he wouldn't have met.

[00:35:33] Speaker 04:
He knows better.

[00:35:33] Speaker 04:
He's a special agent for the FBI.

[00:35:35] Speaker 04:
He knows better.

[00:35:36] Speaker 04:
And who knows what the FBI would have found that OIG would have recovered if that meeting and statement hadn't happened.

[00:35:44] Speaker 02:
Well, I have great respect to the FBI and I'm certainly glad that they were looking into this, but it's interesting that the serious charges that were brought against Mr. Parkinson have all disappeared.

[00:35:57] Speaker 02:
And you end up with these charges called lack of candor and obstruction under circumstances where I don't think it's confidential, but he was operating undercover and he's in charge of this undercover operation and doing everything off the books, essentially.

[00:36:22] Speaker 04:
Well, there were receipts.

[00:36:23] Speaker 04:
There were supposed to be receipts kept for everything.

[00:36:25] Speaker 02:
And any charges that he had played with the money wrongly were dropped.

[00:36:32] Speaker 04:
Well, part of the problem here is that one of the charges that, or one of the things that the FBI was looking into was this one $1,200 check, for example.

[00:36:42] Speaker 04:
And the FBI was never able to obtain the untainted recollections of the landlord and his staff.

[00:36:48] Speaker 04:
So who knows what would have turned out, or returns this again.

[00:36:51] Speaker 04:
It's not a situation where the agency had the full

[00:36:54] Speaker 04:
The OIG had the full information that there was a certain amount of obstruction and I see that my time is way past.

[00:37:01] Speaker 04:
I did want to add one thing, unless you have further questions, I did want to add one thing is that there is an error in our brief at the end that USERA does not fall under 23.02.

[00:37:10] Speaker 04:
It would fall under the non-incordance with law section 77.01 from the defense.

[00:37:18] Speaker 04:
Any other questions?

[00:37:19] Speaker 04:
Thank you.

[00:37:37] Speaker 05:
I had just a couple of things I wanted to raise on rebuttal.

[00:37:40] Speaker 05:
There was discussion of the FBI having trouble finding the receipts.

[00:37:43] Speaker 05:
I think it's important to point out that no one in the FBI ever asked Mr. Parkinson about that.

[00:37:48] Speaker 05:
And in the record on appendix page 348, there's an email from Mr. Parkinson to the new team leader offering to assist him in any way possible that he would need in taking over the SOG team.

[00:38:01] Speaker 05:
I think that's a testament to which Mr. Parkinson is the true one, given that Mr. Parkinson's whistleblowing reprisal complaint was based on the fact that he felt his removal as team leader was whistleblowing reprisal.

[00:38:16] Speaker 05:
Secondly, I'd like to point out for the court, what was happening just before Mr. Parkinson had to draw this distinction between ask and tell.

[00:38:24] Speaker 05:
He was being accused for not the first time of theft.

[00:38:28] Speaker 05:
And the OIG investigator on A708 was engaging in very hostile questioning and interrupting him, saying things like, I'm looking at this as a civilian.

[00:38:38] Speaker 05:
There's something wrong with this.

[00:38:40] Speaker 05:
I'm not a lawyer either, but I'm just saying it sounds fishy to me.

[00:38:43] Speaker 05:
And Mr. Parkinson was defending himself.

[00:38:45] Speaker 05:
I think any employee would be hesitant to accept that investigator's terminology.

[00:38:51] Speaker 03:
You do make an argument in your brief about state of mind with respect to obstruction.

[00:38:58] Speaker 03:
Do you here make and did you before the board make any kind of argument about state of mind with respect to the lack of candor charges?

[00:39:09] Speaker 05:
No, not per se, Your Honor.

[00:39:11] Speaker 05:
And I think I'm glad that you asked that question because it gives me an opportunity to bring this up.

[00:39:16] Speaker 05:
Until the board's decision in Brooks Hughes, there was really no question that this was a lack of candor charge and not a lying under oath charge.

[00:39:23] Speaker 05:
However, Brooks Hughes decided after all the briefing was completed in

[00:39:27] Speaker 05:
at the board level.

[00:39:30] Speaker 05:
And in Brooks Hughes, MSPB declared that violations of offense code 2.6 constituted falsification because of the language that Judge Plater pointed out about knowingly providing false information under oath and held the FBI to a higher falsification standard of proof.

[00:39:48] Speaker 05:
Before the board, our argument was not on the distinction between lack of candor and falsification.

[00:39:54] Speaker 05:
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 to provide clarity as to what exactly that is, given that there are a lot of charges that might be considered lack of candor but could never be sustained as falsification.

[00:40:12] Speaker 05:
We also argued before the board that to have a lack of candor charge, it has to be some sort of material fact.

[00:40:23] Speaker 05:
simply a mistake, as the Justice Department said, cannot be lack of candor.

[00:40:29] Speaker 05:
No one can be 100% complete and true and accurate 100% of the time.

[00:40:33] Speaker 05:
And so what we asked for in our petition for review before the board was to provide clarity on that specific standard and what is actually required.

[00:40:43] Speaker 05:
When the board then later took the same offense code and applied a different standard of proof, then this became a real issue of an arbitrary decision because the next

[00:40:53] Speaker 05:
FBI employee who's charged with a violation of offense code 2.6, labeled lack of candor slash lying under oath, is not going to know before the board if they're going to require an intent to deceive or if they're going to require an element of deception and what that means.

[00:41:09] Speaker 05:
Thank you.

[00:41:09] Speaker 05:
Thank you.