Opinion

Sergio Luna v. Department of Homeland Security

2024 MSPB 2

Court: Merit Systems Protection Board
Filed: Jan 10, 2024
Status: Published
Cited by: 2 cases
Authority: More cited than 59.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2024 MSPB 2

Docket No. DA-0752-15-0498-I-1

Sergio Luna,

Appellant,

Department of Homeland Security,

Agency.

January 10, 2024

Lorenzo W. Tijerina , Esquire, San Antonio, Texas, for the appellant.

Nina Fantl , San Antonio, Texas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

OPINION AND ORDER

¶1 The appellant has filed a petition for review of the initial decision that

sustained his removal for failure to cooperate in an investigative interview. For

the reasons set forth below, we DENY the petition for review and AFFIRM the

initial decision. The appellant’s removal is SUSTAINED.

BACKGROUND

¶2 The material facts of this appeal are undisputed. The appellant was an

Immigration Enforcement Agent for the agency. Initial Appeal File (IAF), Tab 4

at 26. In 2014, the agency’s Office of Professional Responsibility (OPR)

investigated the appellant concerning allegations of disreputable associations and

illicit activities. Id. at 162-64, 264. As part of the investigation, the agency

directed the appellant to appear for an OPR interview on June 18, 2014. Id.

at 259. Prior to the interview, the agency notified the appellant that he would be

required to cooperate fully with the OPR investigator and to answer all relevant

and material questions. Id. at 259, 261. It warned him that failure to cooperate in

the interview could result in disciplinary action, up to and including removal. Id.

at 259, 261-62. The agency further represented to the appellant that neither the

answers he gave to the interview questions nor any information gathered by

reason of those answers could be used against him in a criminal prosecution,

except that the appellant could be prosecuted for any false answers that he might

give. Id. at 261-63.

¶3 On March 18, 2015, the agency proposed the appellant’s removal based on a

charge of failure to cooperate in an official investigation, with two specifications.

Id. at 152-56. Under Specification 1, the agency alleged that, during the June 18,

2014 interview, the appellant refused to candidly answer questions about an

incident with law enforcement in Mexico. Id. at 153-54. Under Specification 2,

the agency alleged that the appellant and his representative abruptly terminated

the interview and walked out before the interview had concluded. Id. at 154.

After the appellant responded, the deciding official issued a decision sustaining

both specifications and removing the appellant effective June 17, 2015. 1 Id. at 26,

34-40.

¶4 The appellant filed a Board appeal challenging the merits of the removal

and raising several affirmative defenses. IAF, Tab 1 at 6, 11-12, Tab 15 at 4-12,

Tab 32 at 1-2. Among other things, the appellant argued that the agency could

Prior to the proposal at issue in this appeal, on October 31, 2014, the agency proposed

to remove the appellant for failure to cooperate in another administrative investigation.

IAF, Tab 18 at 79-85. The two separate removal proceedings ran parallel with each

other, and the deciding official addressed them in the same June 16, 2015 decision

letter. IAF, Tab 4 at 34. Although the deciding official removed the appellant pursuant

to the March 18, 2015 proposal, he did not sustain the charges in the October 31, 2014

proposal, and that case was closed without action. Id.

not discipline him for failing to answer questions with criminal implications

absent a “declination to prosecute” from the Department of Justice (DOJ), which

the agency failed to provide. IAF, Tab 15 at 11.

¶5 After a hearing, the administrative judge issued an initial decision

sustaining the appellant’s removal. IAF, Tab 48, Initial Decision (ID). She found

that the appellant failed to cooperate, as charged, and that the agency was not

required to obtain assurance of immunity directly from DOJ before compelling

the appellant to answer questions. ID at 5-15. The administrative judge further

found that the removal penalty was reasonable, and that the appellant did not

prove any of his affirmative defenses. ID at 15-30.

¶6 The appellant has filed a petition for review contesting the administrative

judge’s findings and analysis. Petition for Review (PFR) File, Tab 5. The agency

has filed a response. PFR File, Tab 7.

ANALYSIS

¶7 For the reasons explained in the initial decision, we agree with the

administrative judge that the appellant refused to cooperate in the OPR

investigation as alleged. ID at 4-15. However, that is not the end of the inquiry.

A Federal agency’s authority to discipline an employee for failure to cooperate in

an investigation is circumscribed by the Fifth Amendment to the Constitution.

The Fifth Amendment provides in relevant part that “[n]o person . . . shall be

compelled in any criminal case to be a witness against himself.” 2 Essentially, the

Government may not support a criminal proceeding with statements that it

obtained from a public employee under threat of removal from office. See

Garrity v. New Jersey, 385 U.S. 493, 496-500 (1967).

The Fifth Amendment right to remain silent attaches only when there is a reasonable

belief that elicited statements will be used in a criminal proceeding. Ashford v.

Department of Justice, 6 M.S.P.R. 458, 467 (1981). Although there had been no

criminal proceeding initiated against the appellant as of the June 18, 2014 interview,

there is no dispute that the interview concerned allegations of conduct that carry

criminal penalties under Federal law.

¶8 The contrapositive of this rule is that the Government may not remove an

employee from public office for refusing to give statements that could

subsequently be used against him in a criminal proceeding. Devine v. Goodstein,

680 F.2d 243, 246 (D.C. Cir. 1982). The Fifth Amendment privileges an

individual not to answer official questions put to him in any proceeding, civil or

criminal, formal or informal, when the answers might incriminate him in future

criminal proceedings. Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). Nevertheless,

a public employee subjects himself to dismissal if he refuses to account for his

performance of his public trust, after proper proceedings, which do not involve an

attempt to coerce him to relinquish his constitutional rights. Uniformed

Sanitation Men Association v. City of New York , 392 U.S. 280, 285 (1968). The

Government may accomplish this by giving the employee adequate notice both

that he is subject to discharge for not answering and that his replies (and their

fruits) cannot be employed against him in a criminal case. 3 Kalkines v. United

States, 200 Ct. Cl. 570, 574 (1973). Thus, the Court of Claims held that an

employee may be removed for not answering questions posed by his employing

agency if he is adequately informed both that he is subject to discharge for not

answering and that his replies and their fruits cannot be used against him in a

criminal case. 4 Id.; see Haine v. Department of the Navy, 41 M.S.P.R. 462, 469

(1989); Weston v. Department of Housing and Urban Development , 14 M.S.P.R.

The immunity contemplated in Kalkines is commonly known as “use immunity.” Use

immunity prevents the Government from using compelled statements or any evidence

derived from those statements in a subsequent criminal prosecution, but it does not

prevent the Government from using other evidence to conduct a prosecution. This is

contrasted with transactional immunity, which categorically precludes the Government

from prosecuting the individual for offenses to which the compelled testimony relates.

See Kastigar v. United States, 406 U.S. 441, 443 (1972).

The holdings of the U.S. Court of Claims, announced before the close of business

September 30, 1982, are binding precedent in the U.S. Court of Appeals for the Federal

Circuit. South Corp. v. United States, 690 F.2d 1368, 1369 (Fed. Cir. 1982) (en banc).

These decisions of the U.S. Court of Claims are, in turn, binding on the Board. Social

Security Administration v. Mills, 73 M.S.P.R. 463, 469-70 (1996), aff’d, 124 F.3d 228

(Fed. Cir. 1997).

321, 324, aff’d, 724 F.2d 943 (Fed. Cir. 1983); Ashford v. Department of Justice,

6 M.S.P.R. 458, 465 (1981). The issue in this appeal is what constitutes

“adequate” notice of immunity.

¶9 The appellant argued below, as he does on review, that the agency’s notices

of use immunity were inadequate, and that absent documentation of immunity

from DOJ, his Fifth Amendment right to remain silent still obtained. PFR File,

Tab 5 at 25-26; IAF, Tab 15 at 11. The agency argues that the notices of

immunity that it provided to the appellant were sufficient under Kalkines, and that

there was no requirement for it to also obtain documented approval of that

immunity from DOJ. PFR File, Tab 7 at 1; IAF, Tab 4 at 259, 261-62, 264-65,

Tab 18 at 4-6.

¶10 The administrative judge agreed with the agency. ID at 14. She reasoned

that the appellant was urging her to add an additional condition to the Board’s

holding in Haine, and that she was not free to do so. Id.; see Rose v. Department

of Justice, 118 M.S.P.R. 302, ¶ 8 (2012) (“An administrative judge is bound by

Board precedent and is not free to substitute his views for Board law.”). She also

observed that the appellant’s requested documentation from DOJ would be

redundant to the extent that, under Garrity, any statements compelled under the

threat of removal would be inadmissible in a criminal proceeding regardless of

whether DOJ assented to immunity in advance. ID at 14.

¶11 For the following reasons, we agree with the administrative judge and we

hold that adequate assurance of immunity under Kalkines does not require assent,

written or otherwise, from DOJ. First, just as the administrative judge was not

free to impose additional requirements on the agency beyond those set forth by

the Board, the Board is not free to impose additional requirements beyond those

set forth by the U.S. Court of Appeals for the Federal Circuit. See Gende v.

Department of Justice, 35 M.S.P.R. 518, 523 (1987). Having reviewed the

notices that the agency provided to the appellant prior to the interview, we find

that they were adequate to satisfy the requirements of Kalkines; the agency

clearly notified the appellant that his failure to cooperate in the interview could

result in administrative discipline, up to and including removal, and that neither

the answers he gave to the interview questions nor any information gathered by

reason of those answers could be used against him in a criminal prosecution.

IAF, Tab 4 at 259, 261-623.

¶12 Second, we agree with the administrative judge that the assurance of

immunity that the appellant received from his employing agency was binding on

the Government even absent the explicit assent of DOJ. See Gardner v.

Broderick, 392 U.S. 273, 278 (1968); Uniformed Sanitation Men, 392 U.S. at 284;

Garrity, 385 U.S. at 496-500. Consistent with this Supreme Court precedent, the

Federal Circuit has held that, when an employee is prospectively granted

immunity through the Garrity exclusion rule, he may be removed for failure to

cooperate with an agency investigation. Modrowski v. Department of Veterans

Affairs, 252 F.3d 1344, 1350-51 (2001); Weston v. Department of Housing and

Urban Development, 724 F.2d 943, 947 (1983).

¶13 There are some situations in which a prospective grant of immunity under

Garrity is not sufficient for the Government to compel testimony. Specifically,

Title II of the Organized Crime Control Act of 1970, Pub. L. No. 91-452, 84 Stat.

922, 926-32 (codified as amended at 18 U.S.C. chapter 601), sets forth specific

procedural requirements that the Government must follow in order to compel

testimony in various judicial, administrative, and congressional proceedings. The

section concerning administrative proceedings provides as follows:

(a) In the case of any individual who has been or who may be

called to testify or provide other information at any proceeding

before an agency of the United States, the agency may, with the

approval of the Attorney General, issue, in accordance with

subsection (b) of this section, an order requiring the individual to

give testimony or provide other information which he refuses to give

or provide on the basis of his privilege against self-incrimination,

such order to become effective as provided in section 6002 of this

title. [5]

(b) An agency of the United States may issue an order under

subsection (a) of this section only if in its judgment–

(1) the testimony or other information from such individual

may be necessary to the public interest; and

(2) such individual has refused or is likely to refuse to

testify or provide other information on the basis of his privilege

against self-incrimination.

18 U.S.C. § 6004. Thus, a formal grant of immunity under this section cannot be

given without “approval of the Attorney General.” 6 The Supreme Court has held

that, for proceedings in which such a formal grant of immunity is available, this

is the only way for the Government to compel testimony over a Fifth Amendment

objection. Pillsbury Co. v. Conboy, 459 U.S. 248, 253-64 (1983). Prospective

immunity granted by the court or agency conducting the proceeding is

insufficient. United States v. Doe, 465 U.S. 605, 615-17 (1984). Therefore, if

the agency’s June 18, 2014 interview were covered by 18 U.S.C. chapter 601, the

documentation advising the appellant of his Kalkines rights would have been

insufficient to overcome his Fifth Amendment objection; the agency would have

instead had to have followed the statutory procedure and issue a formal order

with the approval of the Attorney General.

¶14 However, we find that the investigative interview was not a proceeding

covered by 18 U.S.C. chapter 601. Specifically, 18 U.S.C. § 6001(3) defines

“proceeding before an agency of the United States” as “any proceeding before

such an agency with respect to which it is authorized to issue subpoenas and to

take testimony or receive other information from witnesses under oath.” There is

Section 6002 of Title 18 of the United States Code provides that if the Government

issues an order under this chapter, the subject witness may not refuse to testify on the

basis of his privilege against self-incrimination, but no truthful testimony or other

information compelled under the order, or any information derived therefrom, may be

used against the witness in a criminal case.

The Attorney General has, by regulation, delegated this approval authority to certain

other officers within DOJ, depending on the circumstances. 28 C.F.R. § 0.175.

no indication in this case that the agency had such authority, and at this time we

are unaware of any Federal agency that would be authorized to issue a subpoena

in an employment-related investigation of one of its own employees.

¶15 We therefore hold that the procedures of 18 U.S.C. chapter 601 do not apply

to the agency’s investigation into the appellant’s work performance or fitness for

duty, and we join numerous courts in holding that a Government employee is not

entitled to formal immunity before being compelled to answer his employer’s

questions. Speilbauer v. County of Santa Clara, 199 P.3d 1125, 1132-40 (Cal.

2009); Aguilera v. Baca, 510 F.3d 1161, 1171-1172 (9th Cir. 2007); Hill v.

Johnson, 160 F.3d 469, 471 (8th Cir. 1998); Harrison v. Wille, 132 F.3d 679, 683

(11th Cir.1998); Wiley v. Mayor and City Council of Baltimore, 48 F.3d 773, 777

(4th Cir. 1995); Arrington v. County of Dallas, (5th Cir. 1992). Public employees

“are not relegated to a watered-down version of constitutional rights.” Garrity,

385 U.S. at 500. Nevertheless, there is an “important public interest in securing

from public employees an accounting of their public trust.” Lefkowitz v.

Cunningham, 431 U.S. 801, 806 (1977). Therefore, “[p]ublic employees may

constitutionally be discharged for refusing to answer potentially incriminating

questions concerning their official duties if they have not been required to

surrender their constitutional immunity.” Id. The appellant in this case was not

required to surrender his constitutional immunity; instead, he was accurately

informed of that immunity and of the administrative discipline that he would face

if he chose to remain silent. IAF, Tab 4 at 259, 261-62. This notice was

sufficient under Kalkines, and nothing more was required. Because the appellant

refused to answer the agency’s questions despite having received adequate notice

under Kalkines, the ensuing removal action did not violate his constitutional

rights.

¶16 We have considered the remaining arguments that the appellant raised on

petition for review, but find that none of them provide a basis to disturb the initial

decision.

¶17 This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.

§ 1201.113).

NOTICE OF APPEAL RIGHTS 7

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 8 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the