DOJ v. FLRA

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 13, 2001 Decided October 9, 2001

No. 00-1433

U.S. Department of Justice, Washington, D.C. and

Office of Inspector General, U.S. Department of Justice,

Petitioners

v.

Federal Labor Relations Authority,

Respondent

American Federation of Government Employees

Local 709,

Intervenor

On Petition for Review and Cross-Application

for Enforcement of an Order of the

Federal Labor Relations Authority

---------

Howard S. Scher, Attorney, U.S. Department of Justice,

argued the cause for petitioners. With him on the briefs was

William Kanter, Deputy Director.

Ann M. Boehm, Attorney, Federal Labor Relations Au-

thority, argued the cause for respondent. With her on the

brief was David M. Smith, Solicitor. William R. Tobey,

Deputy Solicitor, entered an appearance.

Stuart A. Kirsch and Mark D. Roth were on the brief for

intervenor.

Before: Tatel and Garland, Circuit Judges, and Williams,

Senior Circuit Judge*.

Opinion for the Court filed by Senior Judge Williams.

Williams, Senior Circuit Judge: This is an appeal from the

Federal Labor Relations Authority's finding of an unfair

labor practice on the part of the Department of Justice's

Office of the Inspector General ("OIG"). The FLRA found

that the OIG had violated the so-called Weingarten rule

during its investigation of a Department employee, see NLRB

v. J. Weingarten, Inc., 420 U.S. 251 (1975) (codified as to

federal employees in 5 U.S.C. s 7114(a)(2)(B)), by refusing

the employee's request for the assistance of a union represen-

tative. Believing the case to be controlled by Supreme Court

precedent, we uphold the FLRA's decision.

* * *

The OIG received a report that an employee of the Federal

Correctional Institution Englewood, in Littleton, Colorado

had smuggled illegal drugs into that facility. The employee,

a member of a bargaining unit, asked for union representa-

tion, but the investigating agents denied the request and

interviewed him anyway. The criminal investigation was

later closed when the prison warden wrote a memorandum to

the employee informing him that "there was nothing to

substantiate the allegations, and that there would be no

further investigation."

The union representing the employee filed an unfair labor

practice charge, claiming that the agents' denial of the em-

__________

* Senior Circuit Judge Williams was in regular active service at

the time of oral argument.

ployee's request had violated 5 U.S.C. s 7114(a)(2)(B). That

section requires an agency to give an employee the opportuni-

ty to have a union representative at an interrogation under

certain circumstances. The FLRA's General Counsel issued

a complaint. The ALJ granted summary judgment for the

FLRA, and the Department and OIG filed exceptions. In the

meantime the Supreme Court issued an opinion upholding a

prior FLRA decision that a NASA Inspector General was a

"representative of the agency" within the meaning of

s 7114(a)(2)(B), and that he therefore violated that section

when he interviewed a NASA employee without allowing

adequate union representation. National Aeronautics and

Space Administration v. FLRA, 527 U.S. 229 (1999)

("NASA"). Following that decision, the FLRA adopted the

ALJ's decision and order. U.S. Department of Justice v.

Federal Labor Relations Authority, 56 FLRA 556 (2000). It

rejected the Department's argument that, in view of the

Court's statement in NASA that it was not considering the

applicability of s 7114(a)(2)(B) to "law enforcement officials

with a broader charge," 527 U.S. at 244 n.8, the section could

not properly be applied to the OIG's criminal investiga-

tions--as distinct from the administrative investigation at

issue in NASA. Like the FLRA, we find no basis for carving

out such an exception from NASA.

* * *

The statutory provision at issue here provides in relevant

part:

(2) An exclusive representative of an appropriate unit in

an agency shall be given the opportunity to be represent-

ed at--

(B) any examination of an employee in the unit by a

representative of the agency in connection with an

investigation if--

(i) the employee reasonably believes that the exami-

nation may result in disciplinary action against the

employee; and

(ii) the employee requests representation.

5 U.S.C. s 7114(a)(2)(B) (emphasis added). As the section is

part of the FLRA's organic statute, we owe its interpretation

deference under Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984). See NASA, 527

U.S. at 234. To the extent that the FLRA decision is simply

an interpretation of NASA itself, however, we owe the FLRA

no deference. See New York v. Shalala, 119 F.3d 175, 180

(2d Cir. 1997) (holding that "an agency has no special compe-

tence or role in interpreting a judicial decision"); cf. Profes-

sional Reactor Operator Society v. United States Nuclear

Regulatory Commission, 939 F.2d 1047, 1051 (D.C. Cir. 1991)

(deference is inappropriate when the agency interprets a

statute it is not charged to administer). In fact the case

turns on the force of the Department's efforts to distinguish

NASA, and we agree with the Authority's conclusion that the

attempted distinctions are flawed. Like the Court in NASA

itself, we need not consider whether s 7114(a)(2)(B) permits

other readings. See NASA, 527 U.S. at 234.

As in NASA, no one here questions that there was an

"examination" of a bargaining unit employee, that the exami-

nation was "in connection with an investigation," that the

employee requested representation, or that the employee

reasonably believed that he might be subject to disciplinary

action. See NASA, 527 U.S. at 233. Thus, the only issue in

dispute is whether, as the Court found there, the Authority

could find that the OIG agents were "representative[s] of the

agency" when they conducted the interview.

To support the proposed distinction between criminal and

administrative investigations, the Department points to a

provision of the Inspector General Statute that it says creates

special consequences for an investigation's being criminal. 5

U.S.C. App. s 4(d) requires any OIG agent to "report expedi-

tiously to the Attorney General whenever the Inspector Gen-

eral has reasonable grounds to believe there has been a

violation of Federal criminal law." Id. According to the

Department, this implies that whenever a criminal investiga-

tion is underway, the OIG agent is for purposes of

s 7114(a)(2)(B) no longer a "representative of the agency" but

rather answers to the Attorney General.

First we note that s 4(d) is triggered whenever an Inspec-

tor General comes upon "reasonable grounds to believe" that

federal criminal law was violated. This is a broader test than

what the Department regards as the key distinction of this

case from NASA, namely the OIG's own classification of the

investigation as criminal; our acceptance of it as controlling

would thus sweep an unknown number of administrative

inquiries into the exception. More important, nothing in

s 4(d) overrides 5 U.S.C. App. s 3(a), which requires that

each Inspector General shall "report to and be under the

general supervision of the head of the establishment in-

volved...." The NASA Court relied at least in part on this

provision in holding that OIG agents are "representatives" of

their respective agencies. 527 U.S. at 239. Section 4(d)'s

extra reporting requirement does not extract OIG agents

from the organizational spot that is assigned them by

s 3(a)--under the head of the relevant agency.

Thus the Department's effort at a statutory distinction

between criminal and administrative investigations fails. Its

remaining argument is mostly that the NASA decision rested

on factors that are peculiar to administrative investigations

and therefore it does not apply to criminal ones. None of the

distinctions seems convincing.

First, the Department argues that NASA was based on the

fear that agency managers might hand off their dirty work to

OIG agents, thus circumventing s 7114(a)(2)(B) by using the

OIG to conduct investigations for their own purposes. See

NASA, 527 U.S. at 234. With criminal investigations, the

Department says, this concern is "totally absent" because

agency managers have no "criminal investigative duties" in

the first place. But the NASA decision rested (in part) on a

recognition that the overlaps between "pure" management

activities and OIG duties would naturally generate coopera-

tion between agency managers and OIGs. 527 U.S. at 242.

It would be astonishing for us to ignore the parallel, and

equally obvious, overlap of administrative and criminal en-

forcement goals and to create an exception resting on this

ignorance. In fact, we once observed that "the results of

inspections, when no criminal proceedings ensue, are routine-

ly turned over to management for possible use in disciplinary

actions." U.S. Postal Service v. NLRB, 969 F.2d 1064, 1072

(D.C. Cir. 1992).

Second, the Department argues that NASA was in part

compelled by the fact that Inspectors General, when conduct-

ing an administrative investigation, need the cooperation of

agency managers, who can direct the employee's use of his

time--here, to attend the interview and answer questions.

See NASA, 527 U.S. at 242. The Department attributes this

power to the fact that the employee's refusal to answer

questions related to his duties may be used against him in an

administrative investigation. See Kalkines v. United States,

473 F.2d 1391, 1393 n.4 (Ct. Cl. 1973). In contrast, says the

Department, the employee's refusal to answer questions in a

criminal investigation may not be used against him. See

Garrity v. New Jersey, 385 U.S. 493 (1967). It follows that

the agency manager has "no role" to play in forcing the

employee to answer questions in a criminal investigation.

We cannot see that the "no role" consequence follows. In

both administrative and criminal investigations, the employee

enjoys a Fifth Amendment right not to incriminate himself in

his answers to a government investigator. The only differ-

ence appears to be that in administrative investigations, the

investigators usually grant criminal immunity to the employ-

ee, see Kalkines, 473 F.2d at 1393 n.4, so that they may

threaten the employee with administrative penalties unham-

pered by the Fifth Amendment. But this is a choice made by

the Inspector General in a given case, depending on what

penalties he or she wishes to seek. In other words, the

difference between administrative and criminal investigations

in this respect is one of investigative strategy, not one of law.

In either case, both OIG and agency management can benefit

by mutual cooperation, and it was the likelihood of such

cooperation that the NASA Court saw as militating in favor

of treating OIG interrogators as "representatives of the agen-

cy."

Third, the Department argues that in a criminal investiga-

tion an employee has the right to an attorney and therefore

doesn't need a union representative. But nothing in the

language of the statute or of NASA suggests that the applica-

tion of s 7114(a)(2)(B) depends on whether a particular em-

ployee "needs" union representation. Moreover, the section

implicates the union's rights as well. See Weingarten, 420

U.S. at 260-61. In fact, we've already rejected a suggestion

that an interrogatee's right to counsel could render

s 7114(a)(2)(B) inapplicable. American Federation of Gov-

ernment Employees, Local 1941, AFL-CIO v. FLRA, 837

F.2d 495, 499 n.5 (D.C. Cir. 1988).

Apart from the supposedly distinguishing "factors" and the

reference to s 4(d), the Department relies heavily on the

NASA Court's statement that it was not deciding the applica-

bility of s 7114(a)(2)(B) to "law enforcement officials with a

broader charge." NASA, 527 U.S. at 244 n.8. But the

reference doesn't appear to address OIG agents at all. In the

previous sentence the Court mentioned the concern that

applying s 7114(a)(2)(B) to the OIG might hinder "joint or

independent FBI investigations of federal employees." Id.

Thus the later reference to "law enforcement officials" clearly

means "FBI officials" or the like, not an agency's OIG

officials pursuing a criminal investigation on their own. As

was true for the Court in NASA, we need not address the

possible application of s 7114(a)(2)(B) to a joint OIG/FBI

investigation.

The Department also argues that application of

s 7114(a)(2)(B) to criminal investigations is "simply unwork-

able." Specifically, it says, the union representative might be

called to testify at a trial, thereby working against the

employee's true interests. But where an administrative in-

vestigation turns out to uncover criminality, the union repre-

sentative may equally be called to testify. And if the employ-

ee is concerned about the possible testimony of the union

representative, he can simply decide not to ask for one. Cf.

U.S. Postal Service, 969 F.2d at 1072 n.5 (rejecting idea that

risks of a union representative's testimony against an employ-

ee could enable the employer to deny the Weingarten right).

Perhaps inconsistently, the Department also says that appli-

cation of s 7114(a)(2)(B) will impede criminal investigations.

We have no doubt that there is a risk of such impediments,

but it presumably closely parallels the risks to effective

management (and successful criminal prosecutions) that flow

from application of s 7114(a)(2)(B) to administrative investi-

gations, risks that the Court regarded as "not weighty

enough to justify a nontextual construction of s 7114(a)(2)(B)

rejected by the Authority." NASA, 527 U.S. at 243-44.

Further, on the score of workability, the Department's

approach presents problems of its own. Many if not most

investigations will have both administrative and criminal po-

tential. Classification appears to depend--as one would ex-

pect--on the ongoing flow of information. The investigation

at issue in NASA, for instance, was instigated by information

from the FBI, see 527 U.S. at 231-32, and according to the

FLRA decision involved "a serious threat to co-workers,"

NASA, 50 F.L.R.A. 601, 1995 FLRA LEXIS 82, at *3 (1995).

See also id. at *48 (ALJ decision, noting that documents "set

forth potential threats and plans for violence"). The investi-

gator determined, "after consulting appropriate investigative

agencies," that the employee "had not violated the law and, as

a result, that the matter would be administratively, rather

than criminally, investigated." Id. at *3 n.2. At what point,

then, would the agent's investigation have become subject to

s 7114(a)(2)(B)? When the agent--to some degree indepen-

dently--decided to treat it administratively? What if he had

viewed the matter as unclassified, and interviewed the em-

ployee in part in order to decide on the classification? Such

possibilities erode the likelihood of any bright-line distinction

between administrative and criminal investigations.

* * *

Accordingly, the order of the FLRA is

Affirmed.