Petition for Writ of Certiorari — LaChance v. Erickson

Supreme Court brief1998

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.8.

FILED

961395 MAR 4 1997

OFFICE OF THE CLERK

No.

In the Supreme Court of the United States

OCTOBER TERM, 1996

JAMES B. KING, DIRECTOR, OFFICE OF

PERSONNEL MANAGEMENT, PETITIONER

LESTER E. ERICKSON, JR., ET AL.

JAMES B. KING, DIRECTOR, OFFICE OF

PERSONNEL MANAGEMENT, PETITIONER

Vv.

HARRY R. Mc MANUS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

WALTER DELLINGER

Acting Solicitor General

FRANK W. HUNGER

Assistant Attorney General

SETH P. WAXMAN

LORRAINE LEWIS

General Counsel

STEVEN E. ABOW

JOSEPH E. MCCANN

ANA A. MAZZI

Attorneys

Office of General Counsel

Office of Personnel

Management

Washington, D.C. 20415

Deputy Solicitor General

JAMES A. FELDMAN

Assistant to the Solicitor

General

DAVID M. COHEN

Topp M. HUGHES

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the Due Process Clause precludes a fed-

eral agency from sanctioning an employee for making

false statements to the agency regarding allegations

that the employee had engaged in employment-related

misconduct.

PARTIES TO THE PROCEEDING

In addition to the parties named in the caption, the

parties to the proceedings in the Federal Circuit_

were Jeanette M. Walsh, Michael G. Barrett, Jerome

K. Roberts, Sharon Kye, and the Merit Systems Pro-

tection Board.

TABLE OF CONTENTS

Page

c 1

D ES TE a TE 2

Constitutional provision involved 2

EES r 2

Reasons for granting the petition 12

Ww / e 23

e la

r 24a

EEN „ 29a

ITT re 50a

. 59a

r .. 70a

EEA Ce Na

...... 106a

D 10

TABLE OF AUTHORITIES

Cases:

Boddie v. Connecticut, 401 U.S. 371 (1971) ............. 18

Bryson v. United States, 396 U.S. 64 (1969)... 5, 18, 19

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532

1 — 17, 18

FDIC v. Mallen, 486 U.S. 230 (1988) . 18

Glickstein v. United States, 222 U.S. 139 (1911) ..... 19

Goldberg v. Kelly, 397 U.S. 254 (1970) .... 18

Goss v. Lopez, 419 U.S. 565 (1975) 17

Greene v. McElroy, 360 U.S. 474 (1959) ................... 18

Grubka v. Department of the Treasury, 858 F. 2d

e Siete cennintathcesesccensstescenesceceoceectss 4

Hewitt v. Helms, 459 U.S. 460 (1983) . . 18

Kalkines v. United States, 473 F 2d 1391 (Ct.

ieren 19

Mathews v. Eldridge, 424 U.S. 319 (1976) ............... 18

(II)

Cases—Continued: Page

Morgan v. United States, 304 U.S. 1 (1938) ............ 18

Nix v. Whiteside, 475 U.S. 157 (1986) ..................... 20

Rock v. Arkansas, 483 U.S. 44 (1987) . 20

United States v. Apfelbaum, 445 U.S. 115

6 — — 88 19

United States v. Dunnigan, 507 U.S. 87 (1993) 20

United States v. Equihua-Juarez, 851 F.2d 1222

ü . 15

United States v. Fausto, 484 U.S. 439 (1988) ......... 22

United States v. Grayson, 438 U.S. 41 (1978) ......... 20

United States v. Havens, 446 U.S. 620 (1980) ...... 19, 20

United States v. Holmes, 840 F.2d 246 (4th Cir.),

cert. denied, 488 U.S. 831 (1988) . 15

United States v. Knox, 396 U.S. 77 (1969) ............ 19-20

United States v. LeMaster, 54 F.3d 1224 (6th Cir.

1995), cert. denied, 116 S. Ct. 701 (1996) ................. 15

United States v. Moore, 27 F.3d 969 (4th Cir.),

cert. denied, 115 S. Ct. 459 (1994) . 15

United States v. Myers, 878 F.2d 1142 (9th Cir.

6 ——— A 15

United States v. Rodriguez -Rios, 14 F.3d 1040 (5th

— .

United States v. Watts, 117 S. Ct. 633 (1997) ......... 21

United States v. Wiener, 96 F.3d 35 (1996), opinion

supplemented, Nos. 95-1294, 95-1403, 95-1597, 1996 15

WL 531009 (2d Cir. Sept. 16, 19986) . 15

Vitek v. Jones, 445 U.S. 480 (1980) . . 18

Washington v. Harper, 494 U.S. 210 (19900 18

Wolff v. McDonnell, 418 U.S. 539 (1974) ................. 18

Constitution, statutes and regulations:

U.S. Const. Amend. V (Due Process Clause 2, 10,

16, 17, 19, 21

n 10

L . 16

Statutes and regulations Continued: Page

4 ?—— 17

J... 0 22

3999 22

1 —ů———————— 15

Sentencing Guidelines:

6 —————————ꝛ— 20, 21

. 21

Dr. — 21

In the Supreme Court of the United States

OCTOBER TERM, 1996

No.

JAMES B. KING, DIRECTOR, OFFICE OF

PERSONNEL MANAGEMENT, PETITIONER

LESTER E. ERICKSON, IR., ET AL.

JAMES B. KING, DIRECTOR, OFFICE OF

PERSONNEL MANAGEMENT, PETITIONER

HARRY R. MCMANUS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

VO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Acting Solicitor General, on behalf of James B.

King, the Director of the Office of Personnel Manage-

ment, respectfully petitions for a writ of certiorari to

review the judgments of the United States Court of

Appeals for the Federal Circuit in these cases.

OPINIONS BELOW

The decision of the court of appeals in King v.

Erickson (App., infra, la-23a) is reported at 89 F.3d

1575. The decision of the court of appeals in King v.

McManus (App., infra, 24a-28a) is unpublished. The

(1)

decision of the Merit Systems Protection Board

(MSPB) in Walsh v. Department of Veterans Affairs

(App., infra, 29a-49a) is reported at 62 M.S.P.R. 586.

The decision of the MSPB in Erickson v. Department

of the Treasury (App., infra, 50a-58a) is reported at 63

M.S.P.R. 80. The decision of the MSPB in Kye v.

Defense Logistics Agency (App., infra, 59a-69a) is

reported at 64 M.S.P.R. 570. The decision of the

MSPB in Barrett v. Department of the Interior (App.,

infra, 70a-96a) is reported at 65 M.S.P.R. 186. The

decision of the MSPB in McManus v. Department

of Justice (App., infra, 97a-105a) is reported at 66

M.S.P.R. 586.

JURISDICTION

The judgment of the court of appeals in King v.

Erickson was entered on July 16, 1996. The judgment

of the court of appeals in King v. McManus was

entered on July 22, 1996. The petitions for rehearing

in both cases were denied on November 4, 1996. App.

infra, 106a-109a. On January 27, 1997, Chief Justice

Rehnquist extended the time for filing a petition for a

writ of certiorari to and including March 4, 1997. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Due Process Clause of the Fifth Amendment

provides: Nor [shall any person] be deprived of life,

liberty, or property, without due process of law.”

STATEMENT

These two cases arise from a total of five separate

disciplinary proceedings against government employ-

ees. Each employee appealed his or her discipline to

the Merit Systems Protection Board (MSPB). In

each case, the MSPB upheld an underlying charge of

misconduct but reversed a charge that the employee

had made false statements regarding the misconduct.

In light of that reversal, the MSPB also mitigated the

sanction imposed in each case. The Federal Circuit

affirmed each of those decisions.

I. a. Walsh. Respondent Jeanette Walsh was

employed as a Social Services Assistant at a medical

center operated by the Department of Veterans

Affairs in St. Cloud, Minnesota. She was charged

with having sexual relations with a patient and other

misconduct. App., infra, 2a. An administrative judge

found that the charges had not been proven. /d. at 30a.

The MSPB reversed in part, finding that, “while em-

ployed as a social services assistant, [Walsh] engaged

in sexual relations with an alcohol-dependent patient

at the agency medical center.“ Id. at 41a. The MSPB

found that the relations began when the patient was

an inpatient, as early as September 1988, and contin-

ued after he became an outpatient in November 1988.

Id. at 34a-37a. The MSPB noted that her misconduct

“was intentional and continued for some 18 months.”

Id. at 42a.

Walsh was also charged with making false state-

ments concerning her relationship with the patient, a

charge that the administrative judge affirmed. That

charge was based on inconsistent statements Walsh

had given to her employer. In a December 1988

meeting with a supervisor, Walsh had acknowledged

having an intimate relationship with the patient at

that time. App., infra, 2a. Later, in a 1991 affidavit,

Walsh stated that during the December 1988 meeting

she had denied having an intimate relationship with

the patient. Jbid. Moreover, she consistently stated

that she had not had any relationship with the patient

while he was an inpatient—i.e., during the period

from April 1988 through November 1, 1988. Id. at Za.

The MSPB did not dispute that Walsh had made

false statements regarding her misconduct. Relying

on a new reading of the Federal Circuit’s decision in

Grubka v. Department of the Treasury, 858 F.2d 1570,

1475 (1988), however, the MSPB held that an agency

may not “separately charge an employee with miscon-

duct and making false statements or a similar offense

regarding the alleged misconduct.” App., infra, 41a.

That result was necessary, in the MSPB’s view, to

protect the employee’s “due process right to have an

opportunity to be heard on a charge, and not to have a

falsification type charge automatically sustained by

virtue of the sustaining of an underlying charge.” Id.

at 40a. For the same reason, the MSPB held that

Walsh’s false statements could not be considered as

aggravating factors that would increase the penalty

imposed on Walsh for the charge of misconduct the

MSPB sustained. Id. at 42a. Reviewing the sanction

imposed on Walsh in light of its reversal of the

falsification charge, the MSPB substituted a 90-day

suspension for the penalty of removal that the agency

had imposed.

Chairman Erdreich filed a concurring opinion.

App., infra, 45a-49a. In his view, the principle that

“an employee may give an untrue denial statement in

response to an agency investigation * * * without

the possibility of discipline for that statement * * *

seems to conflict with several mandates that require

a federal employee to be truthful in dealings with his

federal employer.” Id. at 45a. That leads to the

“anomalous result that an employee may be required

to respond to an agency inquiry, but may not be re-

quired to respond truthfully.” Jd. at 46a. It also

„givels] federal employees a privilege not accorded to

ordinary citizens who ‘may decline to answer the

question, or answer it honestly, but [who] cannot with

impunity knowingly and willfully answer with a

falsehood.’” Id. at 46a-47a (quoting Bryson v. United

States, 396 U.S. 64, 72 (1969)). Expressing his “con-

cerns about how this decision * * * affects the

standards of employee conduct basic to the ethical

underpinnings of our federal civil service,” id. at 49a,

Chairman Erdreich nonetheless concurred on the

ground that Grubka and a later Federal Circuit

decision compeiled that result. See ibid.

b. Erickson. Respondent Lester Erickson, Jr.,

was employed as a Supervisory Police Officer with

the Bureau of Engraving and Printing. The agency

had apparently been suffering from a series of “Mad

Laugher” harassing telephone calls, in which some-

one would anonymously call agency employees during

work hours, laugh continuously, and then hang up.

Erickson was charged with having encouraged an em-

ployee of an agency contractor to make a “Mad

Laugher“ call to an agency police officer. App., infra,

5a. The MSPB sustained that charge of misconduct.

Id. at 7a, 54a-55a.

Erickson was also charged with making a false

statement in a matter of official interest, in violation

of the agency’s minimum standards of conduct. App.,

infra, 52a. That charge was based on Erickson’s re-

sponses to a series of questions posed by an agency

investigator regarding the “Mad Laugher” calls. In

particular, Erickson had stated that he “never par-

ticipated” in the calls; that he dlid] not know who”

was making the calls; and that he doles] not know the

true identification of the ‘Mad Laugher.’” Id. at Ha-

6a, 52a. Erickson added that “[{iJn my opinion it is

95% of the police unit [and] also possibly personnel in

Production.” Jd. at 6a, 52a-53a.

Based on its decision in Walsh, the MSPB did not

sustain the false statement charge, stating that “[a]n

agency may not charge an employee with falsely

denying misconduct when it is separately charging

the employee with the underlying misconduct.” App.,

infra, 53a. The MSPB accordingly mitigated the

sanction of removal to a 15-day suspension. /d. at 54a-

55a.

c. Kye. Respondent Sharon Kye was employed as a

Supervisory General Supply Specialist for the De-

fense Logistics Agency. She was charged with

failing to safeguard a government Diners Club credit

card, failing to follow instructions for reporting loss,

theft, or compromise of the card, and misuse of the

card. The card was used on more than 29 different

occasions during March 1993 to make improper cash

withdrawals from ATM machines amounting to more

than $2,000. -Initial Decision at 2. In addition, Kye

used the card for the rental of a motel room on March

31, 1993, and the agency produced the motel regis-

tration form signed by Kye. Id. at 9. Kye was not

authorized to use the card at all during that period,

because she was not on official travel. Jd. at 2. The

MSPB sustained the charges of misconduct. App.,

infra, 59a-67a.

Kye was also charged with providing false infor-

mation in an official investigation. She repeatedly

maintained that she had not herself used the card for

any of the improper charges. In addition, she told an

agency investigator on one occasion that she had lost

possession of the card while it was being misused, but

that she had torn it up as soon as she regained

possession of it, on April 2 or 3, 1993. Initial Decision

at 5. At a later interview, she stated that she did not

have possession of the card in early April 1993, but

that she had in fact torn it up during the middle of

April. Id. at 6. In fact, the evidence showed that she

had the card in her possession on March 31, when she

used it at the motel. Jd. at 9.

Based on its decision in Walsh, the MSPB did not

sustain the false statement charge. App., infra, 63a.

The MSPB accordingly mitigated the sanction of re-

moval to a 45-day suspension. Id. at 63a-64a. Member

Amador dissented from the decision to mitigate the

sanction, on the ground that the charges that had

been sustained were sufficient to warrant the sanc-

tion of removal. Id. at 67a-69a.

d. Barrett and Roberts. Respondents Michael Bar-

rett and Jerome Roberts were employed as Soil

Scientists by the Department of the Interior. In June

1988, they left their duty stations in a government

pickup truck to build a fish pond in the backyard of

their supervisor’s house. They did not take leave for

the time they were not on duty. App., infra, 9a, 71a.

As a result of that incident, they were charged with

making a false claim on their time and attendance

reports when they represented that they had been on

duty during the period that they had been assisting

with the fish pond. Id. at 85a.

Barrett and Roberts also were charged with mis-

representation or concealment of a material fact in

connection with an investigation. When the agency

personnel officer had inquired about the alleged mis-

conduct, “Roberts stated in response to the inquiry

that he did not remember anything about the build-

ing of a fish pond, while Barrett stated that he only

worked on the fish pond on his own time.” App., infra,

86a. The administrative judge had found that those

statements were false. In addition, Barrett and

Roberts were charged with failing to report an act of

fraud, waste, and abuse “when they failed to disclose

to agency officials that [their supervisor] did not

charge them leave for the time that they worked on

the fish pond.” Jbid. The administrative judge sus-

tained that charge as well.

Based on its decision in Walsh, the MSPB did not

sustain the false statement charge. App., infra, 86a-

87a. In addition, the MSPB held that for similar

reasons the charge of failure to report an act of fraud

also could not be sustained. Id. at 87a. In the MSPB’s

view, respondents’ disclosure of the fraud “would have

necessitated implicating themselves in the miscon-

duct of filing a false time and attendance report.”

Ibid. The MSPB concluded that Ja] charge based on

such a requirement of self-implication is contrary to

* * * Walsh” and therefore had to be reversed as

well. Jbid. Accordingly, the MSPB substituted a

letter of reprimand for the demotions and 30-day

suspensions the agency had imposed on Barrett and

Roberts. Jd. at 7la, 88a-89a. Member Amador dis-

sented in part, stating that the appropriate punish-

ment in his view was a 30-day suspension. Id. at 9la-

96a.

e. McManus. Respondent Harry McManus was

employed as a Supervisory Correctional Officer with

the Department of Justice. He was charged with

conduct unbecoming a supervisor, based on various

sexual comments he had made to a female correctional

officer. For example, he had referred to her bra size,

had asked her about her preferred sexual positions,

told her he had a “bulge” in his pants when thinking

about that subject, and asked whether the female

officer could see how much she excited him. App.,

infra, 98a. The MSPB affirmed the administrative

judge’s findings that McManus had engaged in

misconduct. Id. at 97a-105a.

McManus also was charged with making false

statements during the agency’s investigation. Dur-

ing an initial interview, McManus had denied having

told the female officer that he was disappointed she

had not called one evening when they were on duty

together; he denied having stated that “he would have

[the female officer] relieved so that she could come

over to [McManus’s post] and tease him more”; he

“flatly denied discussing the subject of preferred

sexual positions” with the female officer; and he

“denied that he told [the female officer] that he had a

bulge (in his pants) while talking with her.” App.,

infra, 25a-26a. In a later interview he admitted that

in fact he made all of those statements. Ibid.

Based on its decision in Walsh, the MSPB did not

sustain the false statement charge. App., infra, 100a.

The agency argued that the MSPB should nonethe-

less take McManus’s false statements into account in

assessing his credibility when he denied that the

female officer had ever specifically discouraged his

remarks. That testimony contradicted statements

by the female officer that, although she initially par-

ticipated in the sex-related joking, she later told

McManus to stop. The MSPB, however, categorically

“decline[d] to consider [MeManus's] false statement

in analyzing the penalty issue“ —even for such im-

peachment purposes. Jbid. The MSPB accordingly

substituted a 14-day suspension for the demotion the

agency had imposed on McManus. Id. at 103a.

2. Inits decision in Erickson, the court of appeals

considered appeals from the MSPB’s decisions re-

garding Erickson, Walsh, Barrett and Roberts, and

Kye. App., infra, la-23a. Relying on “procedural due

process concerns,” id. at 20a, the court held “that an

agency may not charge an employee with falsification

or a similar charge on the ground of the employee’s

denial of another charge or of underlying facts relat-

ing to that other charge,” id. at 21a.

The court initially noted “that the government em-

ployees here had a protected property interest in

their employment,” App., infra, 10a, and that they

were therefore entitled both under applicable statutes

and under the Due Process Clause to notice and a

meaningful opportunity to be heard before adverse

action is taken against them, id. at 10a-lla (citing 5

U.S.C. 7513(b)). The court agreed with the MSPB

that its earlier Grubka decision was correctly inter-

preted to hold “that an employee’s denial of the factual

basis of a [misconduct] charge may not be used as the

basis for a falsification charge.” Id. at 15a.

The court also rejected the suggestion that there

should be any distinction between denying an allega-

tion of misconduct and denying the facts underlying

the allegation. In the court’s view, Aalllowing an

agency to charge an employee with falsely denying

facts underlying a misconduct charge would deprive

the employee of a meaningful opportunity to respond

to the charges.” App., infra, 16a. The court noted

that “employees might be reluctant to deny charges

for fear that their denials would be construed as

denials of facts, which in OPM’s view would subject

them to an additional falsification charge.” Ibid. The

court also stated that if falsification charges were

permitted in this context, employees could be “co-

erced into admitting the misconduct, whether they

believe that they are guilty or not, in order to avoid

the more severe penalty of removal possibly resulting _

from a falsification charge.” Id. at l6a-17a. In the

court’s view, that “would create a ‘chilling effect’ on

their clear right to defend themselves, a ‘Catch-22’

situation for employees that is inconsistent with the

due process right provided by federal law to enable

them to defend themselves.” Id. at 17a.

The court stated that its holding did not “mean

* * * that an employee has a right to lie or affirma-

tively mislead an agency engaged in an investiga-

tion.” App., infra, 17a. The court stated that “[ble-

yond a denial of a charge or of the factual accusations

supporting a charge, an employee may not make up

a false story, or tell ‘tall tales’ in order to defend

against a charge.” Ibid. The court also stated that

“when the agency is in an investigatory mode, prior

to charges having being brought,” and “when inves-

tigations are conducted concerning the conduct of

other employees, false statements are actionable.” /d.

at 18a.

Applying the above principles, the court of appeals

affirmed the MSPB’s decisions in each of the cases

before it. In Walsh’s case, the court held that the

employee’s statements were “mere denials of having

an intimate relationship with the patient” and were

therefore insufficient to support a false statement

charge. App., infra, 22a. In Erickson’s case, the

court affirmed the MSPB’s decision because the em-

ployee’s denials of having knowledge of or participat-

ing in the “Mad Laugher” calls “were denials of hav-

ing engaged in such conduct” and “were thus not

otherwise false.” Ibid. In Kye’s case, the court held

that the employee’s denials of having misused the

credit card and her other statements “in effect were

* * * denials and were not actionable false

statements.” Id. at 23a. Finally, in Barrett's and

Roberts’ case, the court held that the employees’

statements that “they knew nothing of the events in

question” were not actionable because they were “in

essence * * denial[s) and Were] not otherwise

false.” Ibid.

3. Eight days after its cecision in Erickson, the

Federal Circuit decided McManus in an unpublished

decision. App., infra, 24a-28a. The court relied on its

decision in Erickson to hold that the employee’s

denials of having made sexual comments to the female

officer “were within the range of denials that must be

permitted in order to make meaningful the right to

respond to charges.” Id. at 28a. Accordingly, the

court concluded that “the board did not err in revers-

ing the falsification charge against McManus.” /bid.

REASONS FOR GRANTING THE PETITION

Before the government may deprive one of its em-

ployees of a protected property interest in employ-

ment based on an allegation of misconduct, the

employee must ordinarily be given notice and an

opportunity to be heard on the charges. The em-

ployee’s right to a meaningful opportunity to be

heard, however, has never been understood to include

the right to make false statements with impunity

during an agency investigation. To the contrary, the

court of appeals’ conclusion is inconsistent with

settled principles that the Constitution contains no

right to lie. Because the court of appeals’ decision

threatens to do substantial damage to the ethical

underpinnings of the civil service and represents an

unjustifiable judicial intrusion into the proper scope

of federal employee discipline, further review is

warranted

1. The basic holding of the court of appeals in these

cases is unequivocal: “an agency may not charge an

employee with falsification or a similar charge on the

ground of the employee’s denial of another charge or

of underlying facts relating to that other charge.”

App., infra, 21a. That ruling creates a right to lie for

federal employees suspected of on-the-job wrongdoing.

Although the court of appeals recognized that “the

agency is entitled to truth-telling” in some circum-

stances, id. at 18a, the holding of the court of appeals

is that federal agencies are not so entitled when their

employees face allegations of misconduct.

The court of appeals accorded an extraordinary

breadth of protection to the right that it created. The

Federal Circuit held not only that the employee’s

false statements may not serve as a distinct ground

for discipline, but also that Idlenials of charges and

related facts may not be considered in determining a

penalty” for the underlying misconduct. App., infra,

21a. Thus, if the employee’s misconduct is proven, the

agency may not take the employee’s false statements

into account in settling upon the appropriate sanc-

tion; the agency must treat the employee as if the

employee had been entirely honest and forthcoming

throughout the investigation. Moreover, although an

employee who makes false statements regarding the

misconduct of others apparently remains subject to

discipline, see id. at 18a, an employee who takes the

same action to cover up his own misconduct cannot be

made to suffer any consequences on that account.

2. The Federal Circuit asserted that the protec-

tion it was granting to false statements was limited.

The court stated that its holding “does not mean

* * * that an employee has a right to lie or affir-

matively mislead an agency engaged in an investiga-

tion.” App., infra, 17a. The court added that “an

employee may not make up a false story, or tell ‘tall

tales’ in order to defend against a charge,” and that

“falsehoods which go beyond denial and defense are

actionable by an agency as falsification.” Ibid. Those

statements do not, however, mitigate the untoward

consequences of the court’s ruie.

First, the Federal Circuit’: assurances that an

agency may still sanction “affirmative[] misleadling]“

or “falsehoods which go beyond denial and defense”

are of limited value in light of the court’s treatment of

the cases before it. Respondent Erickson, for exam-

ple, not only denied having made the “Mad Laugher”

calls, but added that “[iJn my opinion it is 95% of the

police unit [and] also possibly personnel in Produc-

tion” who made the calls. App., infra, 6a. Respondent

Kye falsely stated that she did not have possession of

the credit card during the time it had been misused

and that she had torn the credit card up as soon as she

regained possession of it, on April 2 or 3, 1993. She

then stated (again falsely) that she had in fact torn it

up during the middle of April. All of those statements

were more than mere “denials” and amounted to

efforts to “affirmatively mislead” the agency. Yet the

Federal Circuit nonetheless held that the Consti-

tution precluded the agencies involved from bringing

charges based on those false statements or taking the

false statements into account in any way in determin-

Second, the line between “affirmative misstate-

ments” or “tall tales,” on the one hand, and mere “de-

nial and defense,” on the other, is inherently unstable.

Government agencies as employers will generally ask

their employees a wide range of questions regarding

their on-the-job activities, particularly when miscon-

duct is suspected. Such questions frequently require

an employee who wants to retain credibility while

falsely denying misconduct to make other false state-

ments about related matters as well. In those circum-

stances, protection for the false denials necessarily

shades over into protection for the affirmative mis-

statements.’

The rule adopted by the Federal Circuit is similar in some

respects to the so-called “exculpatory no” doctrine, which has

been used by some courts of appeals to preclude the application

of the federal criminal false statement statute, 18 U.S.C. 1001,

to mere exculpatory denials of wrongdoing. But see United

States v. Rodriguez-Rios, 14 F.3d 1040, 1044-1045 (5th Cir.

1994) (en banc) (rejecting doctrine); United States v. Wiener,

96 F.3d 35, 37 (1996) (same), opinion supplemented on other

grounds, Nos. 95-1294, 95-1403, 95-1597, 1996 WL 531009 (2d Cir.

Sept. 16, 1996); cf. United States v. LeMaster, 54 F.3d 1224,

1227-1230 (6th Cir. 1995), cert. denied, 116 S. Ct. 701 (1996).

The experience of the courts that have applied that doctrine

is instructive. Although the courts that accept the doctrine

routinely recite that the doctrine protects only exculpatory

denials and does not extend to affirmative misstatements, the

lines they have attempted to draw between the two categories

of false statements are not stable. Compare, e. g., United States

v. Moore, 27 F.3d 969, 979-980 (4th Cir.) (holding that “excul-

patory no” doctrine did not protect a defendant’s denials that a

signature was his, that he had prepared certain tax returns,

and that he had ever prepared similar tax returns), cert.

Ct. 459 (1994), and United States v. Holmes, 840

(4th Cir.) (holding that signing a document with

not protected by “exculpatory no” doctrine),

831 (1988), with United States v. Myers,

1143, 1144 (9th Cir. 1989) (holding that “excul-

doctrine protected a defendant who “concocted a

about the [defendant] losing his contact lenses while in

and, as a result, inadvertently flying into prohibited air-

) and United States v. Equihua-Juarez, 851 F.2d 1222,

(9th Cir. 1988) (holding that “exculpatory no” doc-

88134

111

Third, and perhaps most important, even if the

Federal Circuit’s rule could effectively be limited in

the ways suggested by that court, the rule would still

confer a broad and unwarranted immunity on federal

employees who make false statements. Under any

version of the Federal Circuit’s rule, federal em-

ployees would have substantial latitude to make false

statements to their agencies about their on-the-job

conduct. Indeed, the recognition of even a limited

constitutional right to deceive represents an unwar-

ranted intrusion on the discretion of the govern-

ment to determine under what circumstances on-the-

job misconduct by government employees—including

on-the-job dishonesty—should lead to disciplinary

action.”

3. The court of appeals squarely rested its hold-

ings on the Due Process Clause of the Fifth Amend-

trine protects defendant who provided a false name to federal

investigators). *

2 In a further effort to limit its ruling, the Federal Cireuit

stated that when the ageney is in an investigatory mode, prior

to charges having been brought, the agency is entitled to truth-

telling by its employees.” App., infra, 18a. In each of the cases

at issue here, however, the employee made some or all of the

false statements in the course of an agency investigation, i. e.,

before a notice of adverse action under 5 U.S.C. 7513(b)(1) was

sent to the employee. Indeed, the Federal Circuit’s own de-

scriptions of several of the false statements essentially acknowl-

edge as much. See App., infra, 5a (Erickson made false state-

ments “when responding to a list of questions from an agency

investigator”), 9a (Barrett and Roberts “provided false infor-

mation in response to the agency’s inquiry”), 25a (McManus

made false statements “when McManus was interviewed dur-

ing the agency’s investigation”). Nonetheless, the court held

that each of the employees could not be disciplined for the false

statements.

ment. The court began its discussion in Erickson by

quoting that Clause. See App., infra, 10a. The court

then cited to Cleveland Board of Education v.

Loudermill, 470 U.S. 532, 546 (1985), a leading case

from this Court holding that the Due Process Clause

grants employees who have property interests in

their government employment a meaningful opportu-

nity to be heard before they may be deprived of those

interests. See App., infra, lla. Throughout its opin-

ion, the court relied on the constitutional right to “a

meaningful opportunity to respond,” id. at 16a (em-

phasis omitted), and “the due process right provided

by federal law,” id. at 17a, as the bases for its rule.’

Although the court did in one place quote the statute

providing employees charged with misconduct with “a

reasonable time * * * to answer orally and in

writing,” see 5 U.S.C. 7513(b)(2), the court did so

simply to note that “compliance with the[] [statutory]

procedures satisfies the minimum due process re-

quirements to which the employee is entitled.” App.,

infra, IIa. The court did not suggest that the statute

itself grants an employee a right to make false

denials, and nothing in the statutory language would

support creation of such a right.

The court of appeals’ derivation of a right to make

false statements from constitutional procedural due

process principles has no foundation in the decisions

of this Court. No decision of this Court addressing

the scope or nature of the due process right to a

See App., infra, 17a (“meaningful opportunity to re-

spond”), 19a (“due process requires that an employee be al-

lowed to deny both a charge and the underlying facts without

being subject to a falsification charge”), 20a (“the holding in

Grubka was based on procedural due process concerns”).

meaningful opportunity to be heard has suggested

that it includes the right to make false statements

with impunity.’ In Loudermill, for example, the

Court discussed “‘the root requirement’ of the Due

Process Clause as being ‘that an individual be given

an opportunity for a hearing before he is deprived of

any significant property interest.’” 470 U.S. at 542

(quoting Boddie v. Connecticut, 401 U.S. 371, 379

(1971)). Nothing in Loudermill suggests that the

right to a hearing extends to the right to make false

statements at such a hearing. Nor does any other

case from this Court suggest that the purely proce-

dural right to a meaningful opportunity to be heard

includes a substantive right limiting the govern-

ment’s ability to sanction employees who make false

statements.“

: 4. The Federal Circuit’s decision conflicts with de-

cisions of this Court making clear that the Constitu-

tion does not recognize a right to lie and that an indi-

vidual who chooses to answer questions by making

false statements may be made to suffer penalties on

that account. In Bryson v. United States, 396 U.S. 64

(1969), the Court stated the governing legal principle:

See, e.g., Washington v. Harper, 494 U.S. 210, 228-236

(1990); FDIC v. Mallen, 486 U.S. 230, 240-248 (1988); Hewitt v.

Helms, 459 U.S. 460, 472-477 (1983); Vitek v. Jones, 445 U.S.

480, 494-496 (1980); Mathews v. Eldridge, 424 U.S. 319, 339-349

(1976); Goss v. Lopez, 419 U.S. 565, 577-584 (1975); Wolff v.

McDonnell, 418 U.S. 539, 563-572 (1974); Goldberg v. Kelly, 397

U.S. 254, 266-271 (1970); Greene v. McElroy, 360 U.S. 474, 496-

pot Asp Morgan v. United States, 304 U.S. 1, 14-15, 18-22

F The Court recognized that in some circumstances, “a post-

eprivation hearing will satisfy due process requi 4

470 U.S. at 542 n.7. : 7 28

“Our legal system provides methods for challenging

the Government’s right to ask questions—lying is

not one of them.” Id. at 72 (footnote omitted). The

court explained that “[a] citizen may decline to

answer the question, or answer it honestly, but he

cannot with impunity knowingly and willfully answer

with a falsehood.” Ibid. See also Glickstein v. United

States, 222 U.S. 139, 142 (1911) (Fifth Amendment

“does not endow the person who testifies with a li-

cense to commit perjury”).

Although the Court enunciated those principles in

a criminal case, they apply equally in this context. In

one respect, government employees are in a different

position from most individuals in a criminal setting

who may assert their privilege against compelled self-

incrimination in response to questions; government

employees have an obligation to cooperate with their

employer and therefore do not have the option of

simply remaining silent. See, e.g., Kalkines v.

United States, 473 F.2d 1391 (Ct. Cl. 1973). But that

difference does not suggest that government employ-

ees should be given a compensating right to respond

to questions with false statements. If an employee

does not want to answer questions honestly regard-

ing his on-the-job misconduct—i.e., if the employee is

unable to fulfill a basic condition of the employee-

employer relationship—the employee may refuse to

answer and suffer whatever penalties ensue. In any

event, even if the federal employee were viewed as

having been compelled to answer questions, that

would not affect the analysis. In the criminal context,

too, even an individual who is compelled to provide the

government information—on a form required by the

National Labor Relations Board, as in Bryson, on a

wagering tax form, as in United States v. Knox, 396

U.S. 77, 79 (1969), or because he has been granted use

imraunity for his testimony, see United States v.

Apfelbaum, 445 U.S. 115, 126-127 (1980)—“must tes-

tify truthfully or suffer the consequences.” United

States v. Havens, 446 U.S. 620, 626 (1980).

In United States v. Dunnigan, 507 U.S. 87 (1993),

this Court held that Sentencing Guidelines Section

3C1.1, which requires an enhancement of the defen-

dant’s sentence if the defendant commits perjury at

trial, does not “undermine[]” the constitutional right

to testify. 507 U.S. at 96. The Court noted that the

“right to testify does not include a right to commit

perjury.” Ihid. (citing Nix v. Whiteside, 475 U.S. 157,

173 (1986); United States v. Havens, 446 U.S. at 626;

United States v. Grayson, 438 U.S. 41, 54 (1978)). The

Court also noted that the Guidelines provision does

not “distort[] [the defendant's] decision whether to

testify or remain silent,” since there is no “categori-

cal ban on every governmental action affecting the

strategic decisions of an accused, including decisions

2 or not to exereise constitutional rights.“

The right to testify addressed by the Court in

Dunnigan has its roots in large part in the same due

process principles that produce the right to a

meaningful opportunity to be heard relied upon by the

Federal Circuit in this case. See Rock v. Arkansas,

483 U.S. 44, 51 & n.9 (1987). Consequently, the prin-

ciple of Dunnigan that the right to testify does

not include a right to testify falsely conflicts with

the Federal Circuit’s holding that the right to a

meaningful opportunity to be heard does include the

right to make false statements. Indeed, the specific

holding of Dunnigan that a defendant’s sentence may

be enhanced for false testimony is irreconcilable with

the Federal Circuit’s conclusion that “one can hardly

justify enhancing a misconduct penalty because of

* * * falsification.” App., infra, 21a.°

6 The court of appeals’ attempts to distinguish Dunnigan

are unavailing. The court first stated that Dunnigan “only

dealt with enhancement of a sentence in a eriminal context,

where there is a heavier burden of proof than agencies have in

proving charges of falsification against employees.“ App.,

infra, 21a. That account is wrong. The burden of proof in the

federal criminal sentencing context is ordinarily precisely the

same preponderance-of-the-evidence standard that applied to

the charges of falsification in these cases. See United States v.

Watts, 117 S. Ct. 633, 637 (1997) (per curiam) (citing Sentenc-

ing Guidelines § 6A1.3 commentary). In any event, the heavier

burden of proof in criminal cases is a reflection of the fact that

the defendant's liberty—and not merely a property interest

is at stake. Even if criminal sentencing determinations had to

be supported by a higher burden of proof, that would have no

bearing on the question whether a defendant—or, in this case,

a government employee—may suffer additional sanctions for

making false statements.

The court of appeals also stated that “the crime of perjury

consists of lying under oath, a much more serious offense than

violation of 5 C.F.R. § 5.4 [which requires federal employees to

cooperate with investigations and to testify truthfully], thereby

justifying a penalty beyond that levied on the basic offense.”

App., infra, 2la. Under Dunnigan, however, a federal court

may impose a longer sentence, thereby depriving a defendant

of liberty, on account of false statements made at trial that

materially affect the prosecution. If the Due Process Clause

does not forbid imposition of that consequence on those who

testify falsely at trial, it surely does not prohibit the much less

severe sanctions at issue here. Moreover, the Guidelines pro-

vision at issue in Dunnigan permits an enhancement not only

for perjury at trial, but also for unsworn false statements

that obstruct an investigation, similar to the false statement

sanctions the Federal Circuit held to be unconstitutional in

this case. See Guidelines § 3C1.1 & Application Note 3(g)

(enhancement applies to obstruction “during the investigation

5. The rule adopted by the Federal Circuit in these

cases is unprecedented; we have been unable to find

any case from any other court recognizing a constitu-

tional right to make knowing and intentional false

statements with impunity. The Federal Circuit

generally has the final say on employee disciplinary

matters. See 5 U.S.C. 7513(d) (employees may appeal

adverse personnel actions to the MSPB); 5 U.S.C.

7703 (MSPB decisions on employee disciplinary mat-

ters appealable to Federal Circuit). Accordingly, the

government is unlikely to have the opportunity to

litigate the issues in this case before any other court

of appeals. See generally United States v. Fausto, 484

U.S. 439, 446-447 (1988). Moreover, since the Federal

Circuit derived its rule from the Constitution, it

presumably cannot be altered through the issuance of

regulations or even through amendment of the civil

service statutes. Because the Federal Circuit’s deci-

sions in these cases conflict with decisions of this

Court and impose unjustified constitutional re-

straints on the government’s ability to manage the

civil service s stem effectively, review by this Court

is warranted.

* * * of the instant offense,” including “providing a

materially false statement to a law enforcement officer that

significantly obstructed or impeded the official investigation or

prosecution of the instant offense”) (emphasis added).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

LORRAINE LEWIS

General Counsel

STEVEN E. ABOW

JOSEPH E. MCCANN

ANA A. MAZZI

Attorneys

Office of General Counsel

Office of Personnel

Management

MARCH 1997

WALTER DELLINGER

Acting Solicitor General

FRANK W. HUNGER

Assistant Attorney General

SETH P. WAXMAN

Deputy Solicitor General

JAMES A. FELDMAN

Assistant to the Solicitor

General

DAVID M. COHEN

Topp M. HUGHES

Attorneys

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Nos. 95-3745 and 95-3746

JAMES B. KING, DIRECTOR, OFFICE OF

PERSONNEL MANAGEMENT, PETITIONER

LESTER E. ERICKSON, IR., RESPONDENT

and

JEANETTE M. WALSH, RESPONDENT

and

MICHAEL G. BARRETT AND JEROME K. ROBERTS,

RESPONDENTS

and

SHARON KYE, RESPONDENT

and

MERIT SYSTEMS PROTECTION BOARD, RESPONDENT

[Decided July 16, 1996

Before: Rich, LOURIE, and RADER, Circuit Judges.

LOURIE, Circuit Judge.

(la)

The Director of the Office of Personnel Manage-

ment (“OPM”) petitions for review of (1) the final

decision of the Merit Systems Protection Board

holding that an agency may not charge an employee

both with misconduct and with making false state-

ments regarding the alleged misconduct, Walsh v.

Department of Veterans Affairs, 62 M.S.P.R. 586

(1994), and (2) the final decisions of the board revers-

ing falsification charges based on its holding in

Walsh. Erickson v. Department of the Treasury, 63

M.S.P.R. 80 (1994); Kye v. Defense Logistics Agency,

64 M.S.P.R. 570 (1994); Barrett v. Department of the

Interior, 65 M.S.P.R. 186 (1994). We affirm.

BACKGROUND

A. Walsh

The Department of Veterans Affairs employed

Jeanette M. Walsh as a Social Services Assistant at

the agency’s medical center in St. Cloud, Minnesota.

The agency removed her for engaging in a sexual

relationship with a patient, engaging in improper

financial dealings with patients, and providing false

statements to the agency regarding her alleged re-

lationship with a patient. In particular, Walsh pro-

vided inconsistent statements regarding when her

relationship with the patient began and how long it

lasted. In a December 1988 meeting with her super-

visor, Walsh acknowledged that she was having an

intimate relationship with the patient, who at the

time was no longer an in-patient. However, in a

December 1991 affidavit, she averred that during the

December 1988 meeting with her supervisor she

accurately denied having an intimate relationship

with the patient at that time. In spite of this incon-

sistency, she always stated that she did not have an

intimate relationship with the patient while he was an

in-patient at the agency’s facility from April 1988

until November 1, 1988.

In an initial decision, an administrative judge (AJ)

found that the agency failed to prove the first two

charges. Based on his findings regarding these

charges, the AJ did not uphold the third charge. The

agency petitioned for review by the full board. The

board reversed the AJ’s finding that the agency had

failed to prove the first two charges, but held that the

agency improperly charged Walsh with making false

statements regarding the alleged misconduct. Rely-

ing on our decision in Grubka v. Department of the

Treasury, 858 F.2d 1570, 1575 (Fed. Cir. 1988), the

board held that an agency may not charge an em-

ployee both with misconduct and with making false

statements regarding the — 8 The

i that certain of its prior decisions

hed held ta the contrary. Walsh, 62 ll. P. H. at 594

(citing Greer v. United States Postal Serv., 43

M.S.P.R. 180, 184-85 (1990); Kane v. Department of

Veterans Affairs, 46 M.S.P.R. 203, 209 (1990); Ster-

ling v. Department of Defense, 46 M.S.P.R. 177,

185-86 (1990); Hornbuckle v. Department of the

Army, 45 M.S.P.R. 50, 54 n.2 (1990); Hill v. Depart-

ment of the Army, 44 M.S.P.R. 607, 611-12 (1990)).

However, the board also determined that those deci-

sions relied upon a faulty analysis of Grubka. In

Grubka, we stated that a falsification charge based

upon an employee’s denial of misconduct “has no sub-

stance, is frivolous, and the decision of the AJ

sustaining it is not supported by substantial evidence

and is erroneous as a matter of law....” Grubka, 858

F.2d at 1575. The board in Walsh reasoned that,

because we used the conjunction “and” in our holding

in Grubka, two findings were made, one of which was

that the charge was erroneous as a matter of law.

According to the board, Grubka thus supports the

proposition that a separate charge of making false

statements regarding alleged misconduct is errone-

ous as a matter of law and is therefore improper.

The board also stated that in Greer and its

progeny, it mischaracterized the due process con-

cerns enunciated in Grubka. According to the board,

these concerns were not, as stated in previous board

decisions, based upon the Fifth Amendment right

against compulsory self-incrimination but, rather,

were based upon the due process right to be heard on a

charge and to not have a falsification charge auto-

matically sustained on the ground of sustaining the

related misconduct. The board also determined that it

erred in Greer when it stated that, as an alternative

to providing false statements during an agency

investigation, an employee may simply refuse to

answer questions. According to the board, such a

statement was contrary to precedential board deci-

sions and Federal Circuit precedent; an employee may

be removed solely for refusing to answer questions

during an agency investigation if she is warned that

she may be removed for not answering and that her

statements cannot be used against her in a criminal

prosecution. See Weston v. United States Dep't o

Hous. and Urban Dev., 724 F.2d 943, 949 (Fed. Cir.

1983); see also Haine v. Department of the Navy, 41

M.S.P.R. 462, 469 (1989). Accordingly, the board

overruled Greer and its progeny to the extent that

their holdings were contrary to Grubka.

The board mitigated Walsh’s penalty to a 90-day

suspension. In determining the appropriate penalty,

the board noted that it previously had held that an

employee’s false statements may be considered in

determining a maximum reasonable penalty for mis-

conduct. However, it stated that consideration of

false statements in determining a penalty would

conflict with the holding in Grubka and would in

effect penalize an employee for denying a charge.

Accordingly, the board held that an employee’s

alleged false statements in response to an agency

inquiry may not properly be considered in determin-

ing a penalty.

B. Erickson

The Department of the Treasury employed Lester

R. Erickson as a Supervisory Police Officer with the

Bureau of Printing and Engraving. The agency re-

moved Erickson for conduct unbecoming a supervisor

and for making false statements in matters of official

interest. The first charge was based on the agency’s

allegation that Erickson encouraged an employee of

an agency contractor to make a “mad laugher” tele-

phone call to another agency police officer during

duty hours. The “mad laugher” calls were calls to

employees at their duty stations during which the

caller would laugh continuously and then hang up

without identifying himself or herself.

The falsification charge was based on Erickson’s

denials that he participated in the “mad laugher”

calls. In particular, when responding to a list of

questions from an agency investigator, he made the

following allegedly false statements:

Question 2: “Approximate the number of occa-

sions you made ‘Mad Laugher’ calls and to

whom by name?”

Answer: “None.”

Question 6: “Approximate time you quit par-

ticipating in ‘Mad Laugher’ calls.”

Answer: “I never participated.”

Question 9: “Specifically, how many times did

you ask your subordinates to cease the ‘Mad

Laugher' calls?“

Answer: “None, Iblecause I do not know who

is doing it.”

Question 12: “Are you willing to specifically

state all those that are participants in the ‘Mad

Laugher’ telephone calls.”

Answer: “No—I do not know the true

identification of the ‘Mad Laugher.’ In my

opinion it is 95% of the police unit [and] also

possibly personnel in Production.”

In an initial decision, an AJ upheld both charges.

The agency provided a sworn statement and subse-

quent affidavit by the person who was allegedly

encouraged by Erickson to make one of the “mad

laugher” calls. The statement and affidavit affirmed

the truth of the charges, and the AJ found them to be

credible. The AJ also found that the agency had told

Erickson to refrain from making “mad laugher” calls

and that encouraging another to engage in such a

prank was disruptive to the agency’s mission. Fur-

ther, based on the AJ’s belief in the credibility of the

statements in the affidavit, as well as affidavits of

others, the AJ found that Erickson had knowledge of

and participated in the “mad laugher” calls and that

he made false statements when he denied such in-

volvement. The AJ also held that Erickson had not

established that the agency’s action was based on an

alleged handicapping condition of alcoholism. Accord-

ingly, the AJ upheld the penalty of removal.

Erickson petitioned for review by the full board.

The board determined that his petition did not meet

the criteria for review under 5 C.F.R. § 1201.115;

however, it reopened the case on its own motion under

5 C.F.R. § 1201.117. The board upheld the misconduct

charge. However, based on its Walsh decision, the

board reversed the falsification finding, stating that

the essence of the charge was Erickson’s failure to

admit that he participated in “mad laugher” calls, and

that he was charged with encouraging another to

make such a call, not for his own alleged participation,

and that was a matter not within the agency’s con-

cern. The board mitigated the penalty to a 15-day sus-

pension, stating that under its Walsh holding it would

not consider Erickson’s allegedly false statements in

determining an appropriate penalty for the miscon-

duct.

C. Kye

The Defense Logistics Agency employed Sharon

Kye as a Supervisory General Supply Specialist at

the Defense Distribution Depot in Norfolk, Virginia.

The agency removed her for several offenses related

to alleged misuse of a Diners Club card that the

agency issued to her for use in official travel. The

agency also charged her with providing false informa-

tion in an official investigation based on her contra-

dictory statements regarding her use of the card

during the time in question.

In an initial decision, an AJ sustained most of the

charges relating to Kye’s alleged misuse of the card.

The AJ also sustained the falsification charge, finding

that Kye provided false information regarding her

control over the card during the time in question. In

particular, she initially replied to the charges by

stating that the card was missing from the drawer

where she kept it during the period of its alleged

misuse and that she tore it up when it reappeared.

During another interview, she stated that she tore up

the card about three weeks earlier. Later, however,

she stated that she meant to say that she “confronted

the problem” about three weeks earlier but did not

regain control of the card until about two weeks later.

In addition, the agency claimed that she used the card

at a motel during the time in question, and it produced

a copy of a signed registration form from the motel.

Kye stated in response that, although the signature

on the registration form resembled her own, she did

not recall being at the motel. The AJ found that

Kye’s statements contained many improbabilities and

inconsistencies. For example, the AJ found that in

order to believe Kye’s statements that she may have

used the card, he would have had to disbelieve her

statements that she lost control of the card. The AJ

also found that she had not met her burden of proof on

her affirmative defenses of discrimination for making

a protected disclosure and for a handicapping condi-

tion. Accordingly, the AJ found that Kye provided

false statements to the agency, and he upheld the

penalty of removal.

Kye petitioned for review by the full board. The

board analyzed her affirmative defense of handicap

discrimination and found that it lacked merit. Based

on its decision in Walsh, the board summarily re-

versed the falsification charge and mitigated the

penalty to a 45-day suspension.

D. Barrett and Roberts

The Department of the Interior, Bureau of Indian

Affairs, employed Michael G. Barrett and Jerome K.

Roberts as Soil Scientists at the Natural Resources

and Engineering Laboratory in Gallup, New Mexico.

The agency alleged that they left work during duty

hours to help their supervisor build a fish pond at his

home. The agency charged them with making a false

claim on a time and attendance report based on their

1.5 hours of claimed duty time when they were

allegedly building the fish pond; failing to report an

act of fraud, waste, and abuse consisting of their

supervisor’s alleged misconduct; and misrepresenta-

tion or concealment of a material fact in connection

with an agency investigation. According to the

agency, they provided false information in response to

the agency’s inquiry. Roberts stated that he did not

remember building a fish pond, and Barrett stated

that he only worked on the fish pond on his own time.

The ‘agency demoted both and suspended them for 30

days. In an initial decision, an AJ sustained all

charges and upheld the penalties. With respect to the

falsification charge, the AJ found that Barrett and

Roberts stated in response to agency questionnaires

that they knew nothing of the events in question.

Based on the testimony of others, the AJ found by a

preponderance of the evidence that Barrett and

Roberts were at their supervisor’s house during the

time in question and therefore that their statements

to the contrary were false.

Barrett and Roberts petitioned for review by the

full board, which vacated and remanded the AJ’s

initial decision. On remand, the AJ upheld the

agency’s action, and Barrett and Roberts again peti-

10a

tioned for review by the full board. Based on its

decision in Walsh, the board reversed the holdings of

falsification and of failing to report an act of fraud,

waste, and abuse. According to the board, requiring

Barrett and Roberts to report their supervisor’s

alleged misconduct would have necessitated implicat-

ing themselves in the misconduct of filing a false time

and attendance report, and such self-implication was

contrary to its holding in Walsh. The false time and

attendance report charges were sustained; they are

not before us in this appeal. The board also mitigated

the penalties to letters of reprimand.

DISCUSSION

We may reverse a decision of the board only if it

was arbitrary, capricious, an abuse of discretion, or

unlawful; procedurally deficient; or unsupported by

substantial evidence. 5 U.S.C. § 7703(c) (1994);

Cheeseman v. Office of Personnel Management, 791

F. 2d 138, 140 (Fed. Cir. 1986), cert. denied, 479 U.S.

1037 (1987).

Under the Fifth Amendment, “No person shall.

be deprived of .. property, without due process of law

.... U.S. CONST. amend. V. Procedural due pro-

cess under the Fifth Amendment protects federal

employees when they obtain a statutorily-created

property interest in their employment. Board of

Regents v. Roth, 408 U.S. 564, 577-78 (1972) (stating

that property interests are not created by the Con-

stitution, but, rather, are created by existing rules or

understandings). It is undisputed that the govern-

ment employees here had a protected property inter-

est in their employment. See 5 U.S.C. § 7513 (1994).

Federal workers who meet the definition of “em-

ployee,” 5 U.S.C. § 7511, are entitled to the following

lla

procedures protecting their property interests in

their continued employment:

An employee against whom an action is proposed is

entitled to—

(1) at least 30 days’ advance written notice ...

stating the specific reasons for the proposed

action;

(2) areasonable time, but not less than 7 days,

to answer orally and in writing and to furnish

affidavits and other documentary evidence in

support of the answer;

(3) be represented by an attorney or other

representative; and

(4) a written decision and the specific reasons

therefor at the earliest practicable date.

5 U.S.C. § 7513(b) (1994). Section 7513 also states

that actions will be taken against an employee “only

for such cause as will promote the efficiency of the

service.” Id. § 7513(a). When an agency brings

charges against an employee, compliance with these

procedures satisfies the minimum due process re-

quirements to which the employee is entitled. The

agency may then deprive the employee of his property

interest in continued employment when he has been

shown to have failed to perform his job properly or

engaged in reprehensible conduct. See Cleveland Bd.

of Educ. v. Loudermill, 470 U.S. 532, 546 (1985) (stat-

ing that the essential requirements of due process

are notice and a meaningful opportunity to respoid).

While it is clear that the procedures set out in the

statute provide an employee with procedural due

process, the question before us is whether doubling

12a

up a misconduct charge with a charge of falsification

in the course of the agency’s investigation of the

misconduct deprives the employee of the due process

that the statute intends. We hold that it does.

OPM argues that the employees here were given all

the procedural rights due them under 5 U.S.C. § 7513.

OPM asserts, therefore, that it was not improper for

the agencies to charge the employees with falsifica-

tion based on their denials of facts related to the

corresponding misconduct charges.

OPM argues that the statements in Grubka relied

upon by the board are dicta and that therefore the

board’s holding in Walsh is not in accordance with

law. The employees, on the other hand, argue that the

relevant statements are not dicta; further, they argue

that a reversal of Walsh would cause agencies to auto-

matically charge employees with falsification when

the employees deny charges of misconduct. The

board, as respondent, argues that if we determine that

the statements in Grubka are dicta we should remand

for further consideration by the ard.

In Grubka, we reversed a falsification charge that

was based upon an employee’s statements regarding

his alleged misconduct. Grubka held a managerial po-

sition with the Internal Revenue Service, which

charged him with conduct unbecoming an employee in

a managerial position for allegedly embracing and

kissing a female trainee at an off-duty hours Hallow-

een party. Grubka, 858 F.2d at 1572-73. The agency

also charged him with falsification, stating:

Reason II: You made a false statement in a matter

of official interest.

Specification 1: On December 12, 1986, during

an interview conducted by Mr. Curtis S.

13a

Jenkins and Ms. Eileen Collins, you denied

kissing female Revenue Agent Harriet Novak

on the mouth in a stairwell outside the room in

which a party was being held at the Hilton

Hotel, Buffalo, N.Y., on October 30, 1986. You

then executed a written statement to that

effect. This statement was false in that you did

kiss Ms. Novak at the Hilton Hotel on that date.

Id. at 1574. The board sustained the falsification

charge. We reversed the board’s decision, stating:

It has always been the rule and practice that a

person charged with an offense can deny the

charge and plead not guilty, either because he is

not guilty or to force the charging party to

prove the charge, and, regardless of the out-

come, the denial is not itself a separate offense.

Otherwise, a person could never defend himself

against a charge, even though frivolous, for fear

of committing another offense by denying the

charge. The decision of the AJ denied Grubka

his due process rights in that it denied him the

right to a trial on the charge without due pro-

cess of law.

Id. at 1575.

We do not agree that these statements are dicta.

The word “dicta” is an abbreviation for obiter dicta

(the singular being obiter dictum or, more commonly,

dictum), which are AJwlords of an opinion entirely

unnecessary for the decision of the case.“ BLACK’S

LAW DICTIONARY 1072 (6th ed. 1990). They in-

clude a “remark made, or opinion expressed, by a

judge, in his decision upon a cause, ‘by the way,’ that

is, incidentally or collaterally, and not directly upon

the question before hini, or upon a point not necessar-

14a

ily involved in the determination of the cause, or in-

troduced by way of illustration, or analogy or argu-

ment.“ Id.; see Kastigar v. United States, 406 U.S.

441, 454-55 (1972) (stating that broad language in an

opinion unnecessary for the decision cannot be con-

sidered binding authority); Smith v. Orr, 855 F.2d

1544, 1550 (Fed. Cir. 1988) (It is well established

that a general expression in an opinion, which expres-

sion is not essential to the disposition of the case,

does not control a judgment in a subsequent proceed-

ing.”)

In dismissing the falsification charge in Grubka,

this court’s reasons as stated in its opinion for doing

so were not dicta because they were essential to the

decision in question. They were necessary to support

the holding that “the [falsification] charge has no

substance, is frivolous, and the decision of the AJ

sustaining it is not supported by substantial evidence

and is erroneous as a matter of law, and is set aside.”

Grubka, 858 F.2d at 1575 (emphasis added). One of the

holdings was that the falsification charge was con-

trary to law; the above-quoted passage from Grubka

was necessary to support that holding and it was

therefore not dictum. See Woods v. Interstate Realty

Co., 337 U.S. 535, 537 (1949) (stating that alternative

holdings are not dicta); see also Beverly v. United

States Postal Serv., 907 F.2d 136, 137 (Fed. Cir. 1990)

(stating that an AJ properly dismissed a falsification

charge that was based on the petitioner’s denial that

she was at a football game, explaining that it was a

mere denial of the misconduct charges and should not

have been stated as a separate offense). Thus, Grubka

is binding on us and on the Merit Systems Protection

Board.

15a

The facts of Grubka indicate that its holding was

that an employee’s denial of the factual basis of a

charge may not be used as the basis for a falsification

charge. Not only did Grubka deny the misconduct

charge, conduct unbecoming an employee, he also

denied kissing the trainee on the date in question,

thereby denying the underlying facts related to the

misconduct charge. Grubka, 858 F.2d at 1574. In par-

ticular, when interviewed by an agency representa-

tive, Grubka denied “kissing female Revenue Agent

Harriet Novak on the mouth in a stairwell outside the

room in which a party was being held at the Hilton

Hotel, Buffalo, N. V., on October 30, 1986.” He also

executed a written statement to that effect. Grubka

thus specifically denied the facts underlying the mis-

conduct charge. We explained in Grubka that, never-

theless, “the AJ held by circuitous reasoning that

proof by Novak that Grubka kissed her ipso facto

proved that his denial was false and therefore, his

denial was a separate offense as charged.” Id. We

stated that this was improper because the “effect of it

to hold that a denial of a charge itself becomes a

separate proven offense if what is denied is proven to

be true.” Id. at 1574-75.

OPM also argues that the relevant statements in

Grubka should be considered dicta because, according

to OPM, the due process issue was not fully briefed to

the court in that case. OPM cites Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508

U.S. 520, 572-73 (1993) (Souter, J., concurring). How-

ever, a rule announced without full briefing does not

necessarily lack precedential weight. See id. at 573

(Souter, J., concurring). Moreover, the due process

issue has been briefed in this case, along with the

l6a

issue concerning whether the relevant statements in

Grubka are dicta.

OPM would have us draw a distinction between

eenying a charge and denying the underlying facts

related to the charge. While agreeing that an em-

ployee obviously may deny a charge, OPM argues that

an employee’s denial of underlying facts should

properly provide a basis for a falsification charge. We

do not agree. A denial of underlying facts is in effect

a denial of the charge that they support. Allowing an

agency to charge an employee with falsely denying

facts underlying a misconduct charge would deprive

the employee of a meaningful opportunity to respond

to the charges.

Drawing a law-fact distinction, as OPM would have

us do, would require employees not trained in the law

to distinguish between a legal statement of miscon-

duct and the facts which define the misconduct. If

this were permitted, employees might be reluctant 0

deny charges for fear that their denials would be

construed as denials of facts, which in OPM’s view

would subject them to an additional falsification

charge, providing a more severe penalty than a mis-

conduct charge. In the cases before us, the falsifica-

tion charges resulted in penalties of removal or

demotion, whereas the misconduct charges alone,

once the falsification charges were reversed at the

board, resulted in penalties only of suspension or

letters of reprimand. If agencies were allowed to in-

form employees under investigation for misconduct

that their denial of facts may subject them to an

additional falsification charge, they may be coerced

into admitting the misconduct, whether they believe

that they are guilty or not, in order to avoid the more

severe penalty of removal possibly resulting from a

17a

falsification charge. This dilemma might leave them

without a meaningful opportunity to respond or

provide a defense to the charges. It would create a

“chilling effect” on their clear right to defend them-

selves, a “Catch-22” situation for employees that is

inconsistent with the due process right provided by

federal law to enable them to defend themselves.

Moreover, because memories are often faulty,

responses to questions may not always be accurate.

To render such statements constituting denials as

actionable falsehoods might too readily transform

credibility determinations into separate charges of

falsification.

This does not mean, however, that an employee has

a right to lie or affirmatively mislead an agency

engaged in an investigation. See Bryson v. United

States, 396 U.S. 64, 72 (1969) (“Our legal system

provides methods for challenging the Government’s

right to ask questions—lying is not one of them.”).

Beyond a denial of a charge or of the factual accusa-

tions supporting a charge, an employee may not make

up a false story, or tell “tall tales” in order to defend

against a charge. Such falsehoods which go beyond

denial and defense are actionable by an agency as

falsification. For example, if an agency questions an

employee regarding alleged misconduct that occurre 4

in Washington, D.C., and the employee responds that

he was in Boston at the time, when in fact he was not,

that is a falsification that can constitute the basis for

a charge independent of the charge of misconduct. For

another example, if an agency questions an employee

regarding a government-owned television set alleg-

edly stolen from the workplace and found at his home,

and the employee responds that he bought the set

himself when in fact he did not, that similarly would

18a

be a falsification separately chargeable. Moreover,

when the agency is in an investigatory mode, prior to

charges having been brought, the agency is entitled

to truth-telling by its employees. Similarly, when

investigations are conducted concerning the conduct

of other employees, false statements are actionable.

These examples hardly exhaust the situations in

which an agency may charge an employee with mak-

ing a false statement.

As further support for its position, OPM cites our

decisions in Gonzales v. Defense Logistics Agency,

772 F. 2d 887 (Fed. Cir. 1985) and Ahles v. Department

of Justice, 768 F.2d 327 Fed. Cir. 1985). The employ-

ees in these cases were charged with both misconduct

and altering documents to conceal their misconduct.

OPM argues that the principle underlying these

cases and Grubka and Walsh is the same, stating that

Ailf employees can be charged with misconduct and

with falsifying documents to conceal their miscon-

duct, as was done in Gonzales and Ahles, then it

should be equally true that employees can be charged

with misconduct and with making oral false state-

ments to conceal their misconduct.” Altering docu-

ments, however, goes beyond denial and consists of

affirmative acts to mislead the agencies. These deci-

sions thus do not support OPM’s position. y

OPM also argues that Grubka is contrary to an

employee’s obligation to cooperate and answer truth-

fully in agency investigations, citing 5 C.F.R. § 5.4.

That regulation states in pertinent part:

When required by the Office, the Merit Systems

Protection Board, or the Special Counsel of the

Merit Systems Protection Board, or by

authorized representatives of these bodies,

19a

agencies shall make available to them, or to

their authorized representatives, employees to

testify in regard to matters inquired of under

the civil service laws, rules, and regulations,

and records pertinent to these matters. All

such employees, and all applicants or eligibles

for positions covered by these rules, shall give

to the Office, the Merit Systems Protection

Board, the Special Counsel, or to their author-

ized representatives, all information, testimony,

documents, and material in regard to the above

matters, the disclosure of which is not other-

wise prohibited by law or regulation.

5 C. F. R. § 5.4 (1995). We do not agree. OPM’s posi-

tion, if accepted, would have the effect of requiring

employees to assist in proving the charges brought

against them.

The burden is on an agency to prove charges

against an employee. See 5 U.S.C. § 7701(c) (1994),

Jackson v. Veterans Admin., 768 F.2d 1325, 1329

(Fed. Cir. 1985) (stating that an agency has the bur-

den of proof and the burden of persuasion in establish-

ing the factual basis for misconduct). An agency has

means to prove charges other than through admis-

sions or denials of an employee under investigation.

While it might be easier for an agency to prove a

charge by using the leverage of an added charge of

falsification to compel admissions, due process re-

quires that an employee be allowed to deny both a

charge and the underlying facts without being subject

to a falsification charge. Accordingly, while an em-

ployee has no right to lie or make a false statement to

an agency, an employee’s mere denials of charges and

20a

their underlying facts may not be used by an agency

as a basis for a falsification or similar charge.

OPM argues that the Fifth Amendment right

against compulsory self-incrimination does not re-

quire a right of “ mal. As discussed above, however,

the board did not err in determining that the holding

in Grubka was based on procedural due process

concerns. The Fifth Amendment right against com-

pulsory self-incrimination is not dispositive of the

issue here.

Finally, OPM argues that the board erred in

interpreting Grubka to prohibit consideration of an

employee’s alleged false statements in a penalty

determination. In Walsh, the board declined to con-

sider Walsh’s denial of the charges and related facts

as justification for an enhanced penalty. In support of

its position, OPM cites United States v. Dunnigan,

507 U.S. 87 (1993). The defendant in Dunnigan was

convicted of conspiracy to distribute cocaine. Her

sentence was enhanced because the trial court found

that she committed perjury. She appealed to the

Fourth Circuit, which affirmed the conviction but

vacated her sentence, holding that the relevant

sentencing guideline was unconstitutional, and rea-

soning that otherwise “every defendant who takes the

stand ead is convicted [would] be given the obstruc-

tion of justice enhancement.” United States v. Dun-

nigan, 944 F.2d 178, 183 (4th Cir. 1991), rev’d, 507

U.S. 87 (1993). On review by the Supreme Court,

Dunnigan argued that enhancing her sentence

because of perjury interfered with her right to

testify. The Court disagreed, stating that a defen-

dant’s right to testify does not include a right to

commit perjury. Dunnigan, 507 U.S. at 96. Like-

wise, beyond their right to deny charges brought

21a

against them and to deny facts supporting the

charges, federal employees have no right to lie or

make false statements to the government, and such

false statements made during agency investigations

and relating to a:.eged misconduct may properly be

subject to separate falsification charges, which pro-

vide their own penalty if the requisite elements of the

charge are proven.

However, Dunnigan does not provide an agency

with the right to make dual charges of misconduct

and falsification. That case only dealt with enhance-

ment of a sentence in a criminal context, where there

is a heavier burden of proof than agencies have in

proving charges of falsification against employees.

Moreover, the crime of perjury consists of lying

under oath, a much more serious offense than viola-

tion of 5 C.F.R. § 5.4, thereby justifying a penalty

beyond that levied on the basic offense. Thus, Dun-

nigan is not controlling here. In any event, if a

falsification charge may not be added to a misconduct

charge on the basis of mere denials, one can hardly

justify enhancing a misconduct penalty because of

such asserted falsification.

In sum, we hold, consistently with Grubka, that an

agency may not charge an employee with falsification

or a similar charge on the ground of the employee’s

denial of another charge or of underlying facts relat-

ing to that other charge. However, employees do not

otherwise have a right to lie or make false factual

statements to an agency, and such false statements

made during agency investigations and relating to

alleged misconduct may properly be subject to

falsification or similar charges. Denials of charges

and related facts may not be considered in determin-

ing a penalty.

22a

In light of our holding here and the clarification of

our holding in Grubka, we will now review whether

the board’s decisions in not sustaining the particular

falsification charges before us were arbitrary, capri-

cious, an abuse of discretion, or unlawful; proce-

durally deficient; or unsupported by substantial evi-

dence. See 5 U.S.C. § 7703(c) (1994). In Walsh, the

alleged inconsistent statements related to Walsh’s

initial acknowledgement of having an intimate re-

lationship with the patient when he was not an

in-patient, and her subsequent denial of that fact.

However, she consistently denied having an intimate

relationship with the patient while he was an

in-patient at the agency’s facility. Her admission of

having an intimate relationship with the patient was

not a false statement, as the board found that she did

have an intimate relationship with him from time to

time while he was not an in-patient. Her other state-

ments are mere denials of having an intimate

relationship with the patient. Therefore, the board

did not err in refusing to sustain the falsification

charge against Walsh.

In Erickson, it was his denials of having knowledge

of or participating in the “mad laugher” calls that

formed the basis for the falsification charges. He was

charged with conduct unbecoming a supervisor for

encouraging another to make one of the “mad

laugher” calls, and his statements, as they related to

the alleged misconduct, were denials of having en-

gaged in such conduct; they were thus not otherwise

false. Therefore, the board did not err in reversing

the falsification charge against Erickson.

In Kye, it was Kye’s statements regarding whether

or not she had control of her Diners Club card during

the time in question that formed the basis of the

23a

falsification charge against her. While she may have

provided ambiguous statements regarding her control

of the card, she consistently denied using the card

during the time in question. She also testified that

she suspected her son used the card during the time

in question. This statement is consistent with her

statement that she may have lost control of the card

and it is also consistent with her denial of using the

card. Further, she did not affirmatively state that

someone else used the card; rather, she stated her

belief that her son may have used it. Her statements

in effect were thus denials and were not actionable

false statements. Therefore, the board did not err in

dismissing the falsification charge against Kye.

In Barrett, it was Barrett’s and Roberts’ denial of

alleged misconduct that formed the basis for the

falsification charges. In answering an investigator's

questionnaire, both indicated that they knew nothing

of the events in question. That was in essence a de-

nial and was not otherwise false. Therefore, the board

did not err in reversing the falsification charges

against Barrett and Roberts. Falsifying time cards is

another matter, but it is not before us.

CONCLUSION

The board’s decisions in Walsh, Erickson, Kye, and

Barrett are affirmed.

AFFIRMED.

24a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

No. 96-3028

JAMES B. KING, DIRECTOR

OFFICE OF PERSONNEL MANAGEMENT, PETITIONER

HARRY R. Me MANUS, RESPONDENT

AND

MERIT SYSTEMS PROTECTION BOARD, RESPONDENT

Decided: July 22, 1996

Before: Rich, LouRIE, and RADER, Circuit

Judges.

LOURIE, Circuit Judge.

DECISION

The Director of the Office of Personnel Manage-

ment (“OPM”) petitions for review of the board’s final

decision in McManus v. Department of Justice, 66

M.S.P.R. 564 (1995), reversing a falsification charge

based upon its holding in Walsh v. Department of

Veterans Affairs, 62 M.S.P.R. 586 (1994). We affirm.

DISCUSSION

The Department of Justice (“the agency”) employed

Harry R. McManus as a Lieutenant. The agency de-

25a

moted him to the position of Correctional Officer,

charging him with (1) conduct unbecoming a supervi-

sor based upon sexual comments that he made to one

of his subordinates, Corrections Officer Judith White,

and (2) making false statements during an official

investigation. In an initial decision, an administra-

tive judge (“AJ”) found that when McManus was in-

terviewed during the agency’s investigation he

admitted making sexual comments to White. Even

though the comments were often made in an atmos-

phere in which workers voluntarily participated,

the AJ found this to be unsuitable conduct for a

supervisor and he therefore sustained the misconduct

charge.

The AJ found that McManus made the following

false statements during the agency’s investigation:

(1) during the interview on October 29, 1993

(interview 1), the appellant responded that he

never told Officer White that he was disappointed

that she did not call during the evening they were

on duty together; during the interview on Novem-

ber 19, 1993 (interview 2), he responded that he had

called Officer White and told her that he was

disappointed that she had not called;

(2) during interview 1, the appellant stated that

he never said he would have Officer White relieved

so that she could come over to FCI and tease him

more; during interview 2, however, the appellant

stated that maybe he had stated he would have

Officer White relieved;

(3) during interview 1, the appellant stated that

he never asked Officer White why she had not

traded posts with Officer Smith so that she

26a

(Officer White) could be closer to him at FCI;

during interview 2, he stated that, indeed, he may

have asked her this;

(4) during interview 1, the appellant flatly denied

discussing the subject of preferred sexual posi-

tions with Officer White; during interview 2, the

appellant responded that he asked the appellant

[sic], “What (positions) do you like?”;

(5) during interview 1, the appellant flatly denied

ever discussing Officer White accompanying him

on a WITSEC trip; however, during interview 2,

the appellant stated that he had asked her to

accompany him; and

(6) during interview 1, the appellant denied that

he told Officer White that he had a bulge (in his

pants) while talking with her; during interview 2,

the appellant responded, “Can you see how much

you excite me?” (referring to the bulge in his

pants).

When questioned about these inconsistent statements

during his oral reply to the agency’s notice, McManus

stated that he may have “skirted the issue” in an

attempt to end the investigation and that his re-

sponses during the second interview were simply

elaborations of his first responses. The AJ found that

McManus’s explanation was not credible and that he

intentionally made false statements to the agency

during its investigation. Therefore, the AJ sustained

the falsification charge.

However, the AJ found that the agency’s penalty of

demotion exceeded the tolerable bounds of reasonable-

ness. The AJ found that McManus’s comments were

27a

mostly delivered in jest among willing participants,

including White, who initiated the comments on more

than one occasion. With respect to the falsification

charge, the AJ considered that McManus ultimately

told the truth regarding the misconduct. The AJ also

considered that McManus had eleven years of service

without any prior discipline. Accordingly, the AJ

mitigated the penalty to a fourteen-day suspension.

The agency petitioned the full board for review.

The board denied the petition as failing to meet the

criteria for review under 5 C.F.R. § 1201.115; how-

ever, it reopened the appeal on its own motion under 5

C.F.R. § 1201.117. Based upon its decision in Walsh,

in which it held that an agency may not charge an

employee both with misconduct and with making false

statements regarding the alleged misconduct, the

board reversed the falsification charge against Mc-

Manus. The board sustained the misconduct charge

and found that the AJ did not err in mitigating the

penalty. Accordingly, the board affirmed the initial

decision as modified and sustained the mitigation of

the penalty to a fourteen-day suspension. OPM now

appeals.

OPM argues that the board’s holding in Walsh is

not in accordance with law. According to OPM, the

board in its Walsh decision relied upon dicta in

Grubka v. Department of the Treasury, 858 F.2d

1570, 1575 (Fed. Cir. 1988). We recently addressed the

same issue in King v. Erickson, Nos. 95-3745, 95-3746

(Fed. Cir. July 16, 1996). In Erickson, we stated that

the statements in question in Grubka were not dicta,

and we held that “an agency may not charge an

employee with falsification or a similar charge on the

ground of the employee’s denial of another charge or

28a

of underlying facts relating to that other charge.”

Erickson, slip op. at 22.

We review whether the board’s decision in re-

versing the falsification charge against McManus

was arbitrary, capricious, an abuse of discretion, or

unlawful; procedurally deficient; or unsupported by

substantial evidence. See 5 U.S.C. § 7703(c) (1994).

Each of McManus’s responses alleged to be false

statements was essentially a denial of the misconduct

under investigation. During the agency’s first inter-

view, he stated that he never said the statements in

question or he denied having said them. During the

second interview, he stated substantially the opposite.

Under our holding in Erickson, we must conclude

that the first responses were within the range of

denials that must be permitted in order to make

meaningful the right to respond to charges; they were

therefore not separately-actionable false statements.

Accordingly, the board did not err in reversing the

falsification charge against McManus. OPM has not

appealed the issue of mitigation of the penalty, and we

therefore do not address it.

29a

APPENDIX C

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

No. CH-0752-92-0021-I-1

JEANETTE M. WALSH, APPELLANT

DEPARTMENT OF VETERANS AFFAIRS, AGENCY

[May 31, 1994]

OPINION AND ORDER

Before: BEN L. ERDREICH, Chairman, Jessica L.

PARKS, Vice Chairman, and ANTONIO C. AMADOR,

Member.

Chairman ERDREICH issues a concurring opinion.

The agency petitions for review of the initial

decision reversing the appellant’s removal from her

position as a GS-6 social services assistant at the

agency’s St. Cloud, Minnesota Medical Center. For

the reasons set forth below, we GRANT the petition

for review, REVERSE the initial decision in part,

AFFIRM the initial decision in part, and mitigate the

penalty to a 90-day suspension.

30a

BACKGROUND

The agency based its removal action on three

charges: (1) Engaging in an intimate sexual relation-

ship with an alcohol-dependent patient, Richard

Brown; (2) engaging in improper financial dealings

with Brown and another patient; and (3) providing

false statements to the agency concerning her rela-

tionship with Brown. Agency File, Tab 4h; see also

Initial Appeal File (IAF), Tab 11.

After allowing the parties to submit written

evidence, the administrative judge found that the

first and second charges could not be upheld. He

found that the agency failed to prove that the appel-

lant had engaged in an intimate sexual relationship

with Mr. Brown while he was undergoing treatment

at the medical center, that certain products one

patient apparently purchased were purchased from

the appellant rather than from her sister, or that the

other person with whom the appellant allegedly had

financial dealings was a patient at the time of the

alleged dealings. The administrative judge declined

to uphold the third charge largely on the basis of his

findings concerning the first and second charges. He

therefore ordered the agency to cancel the appellant’s

removal.

In its petition for review, the agency argues that

the administrative judge erred in finding that it failed

to establish that the appellant was involved in an

The appellant did not request a hearing, and thus the

administrative judge rendered his decision based on the written

record.

* The agency has provided evidence of compliance with

the administrative judge’s interim relief order sufficient to

meet the requirements of 5 C. F. R. § 1201.115(b).

3la

intimate sexual relationship with Mr. Brown while he

was an in- patient and an out-patient at the medical

center. It points to several alleged inconsistencies in

the appellant’s statements regarding her relationship

with Mr. Brown, and asserts that the administrative

judge erred in finding the appellant’s statements

concerning the relationship to be more specific and

consistent than Mr. Brown’s statements that he and

the appellant had an intimate relationship while he

was a patient at the St. Cloud facility. The agency

argues that the administrative judge further erred in

finding that it had failed to establish that the appel-

lant provided false or misleading information when

she denied having an intimate relationship with Mr.

Brown while he was a patient and in finding that it

had failed to establish that she concealed a fact in

connection with the agency’s inquiry into the matter

by persuading Mr. Brown to conceal his relationship

with her.“

ANALYSIS

Contrary to the administrative judge’s finding,

the agency did prove that the appellant had an

intimate sexual relationship with Mr. Brown while

he was an in-patient at the medical center.

The agency’s assertion that the appellant has

provided inconsistent explanations of the length of

her relationship with Mr. Brown is correct. In an

affidavit dated December 30, 1991, the appellant stated

that she had sexual relations with Mr. Brown three

or four times in the summer of 1989. Appeal File, Tab

8 The agency has not challenged the administrative judge’s

findings regarding any of the other specifications on which the

removal was based.

32a

9. In her statement to agency investigators, however,

she asserted that she had an intimate relationship

with Mr. Brown for approximately a year and half,

beginning in November of 1988. Agency File, Tab 4k

at 5. The appellant also acknowledged in that state-

ment that, when she met with her supervisor in

December of 1988—when Mr. Brown was no longer an

in-patient—she was having a relationship with him.

Id. at 9-10. In her December 30, 1991 affidavit, how-

ever, she stated that, during the December 1988

meeting with her supervisor, she correctly denied

having an intimate relationship with Mr. Brown at

the time of the meeting. Appeal File, Tab 9. Thus,

the appellant’s statements regarding when her rela-

tionship with Mr. Brown started and how long it

lasted are inconsistent. Despite these inconsisten-

cies, however, the appellant has consistently stated

that she did not have an intimate relationship with

Mr. Brown while he was an in-patient at the medical

center from April of 1988 until November 1, 1988.

The agency argues, in effect, that the inconsisten-

cies in the appellant’s statement discredit that state-

ment, and that, once the statement of a witness has

been discredited on one issue or charge, an adminis-

trative judge may not accept the statement of the

same witness on other charges unless he provides

some reasoned explanation of that acceptance. See

Petition for Review at 4. The latter part of this argu-

ment is supported by the Board decision on which the

agency relies, Sternberg v. Departme’. of Defense,

41 M.S.P.R. 46, 54 (1989). That case also states, how-

ever, that an administrative judge is not required to

discredit all of the statement of a witness when some

of the statement is discredited, but if some of the

statement is to be found credible, the administrative

33a

judge must provide a reasoned explanation. Id. In

this case, the administrative judge did not address the

inconsistencies in the appellant’s various explana-

tions, and he did not discuss why some of the

appellant’s statements are credible while others are

not. This failure warrants Board review since, as dis-

cussed below, the appellant’s statements are in con-

trast with Mr. Brown’s statements. See Weaver v.

Department of the Navy, 2 M.S.P.R. 129, 133 (1980)

(in reviewing an initial decision, the Board is free to

substitute its own determinations of fact for those of

the administrative judge, giving his findings only as

much weight as may be warranted by the record and

by the strength of his reasoning), review denied, 669

F. 2d 613 (9th Cir. 1982) (per curiam).

The agency’s investigation into the appellant’s

relationship with Mr. Brown was initiated as a result

of a letter to the agency from Mr. Brown’s wife,

Donna.“ In that letter, Mrs. Brown complained that

the staff at the medical center had determined that

her husband should be admitted to the agency’s

Kennic Falls, Wisconsin, facility, and not the St.

Cloud facility, because of his previous relationship

with the appellant. Mrs. Brown had no direct evi-

dence regarding her husband’s relationship with the

appellant, however; her subsequent statement to

agency investigators was based entirely on Mr.

Brown’s statements to her about the relationship.

See Agency File, Tab 4s. Although hearsay evidence

is admissible in Board proceedings, the probative

value of Mrs. Brown’s statement is slight because of

Richard and Donna Brown were not married at the time

of the appellant's relationship with Mr. Brown; they did not

meet until April of 1990. Agency File, Tab 4k at 11.

34a

her lack of direct knowledge and the fact that Mr.

Brown—the source of her knowledge—also provided a

statement. Borninkhof v. Department of Justice, 5

M.S.P.R. 77, 83-87 (1981) (assessment of the probative

value of hearsay evidence necessarily depends on the

circumstances of each case). Further, Mrs. Brown’s

statement that her husband was sent to the Kennic

Falls, Wisconsin, facility because of his prior re-

lationship with the appellant is not supported by the

statements of Mr. Brown’s treating therapists, coun-

selors, and social workers. They stated that Mr.

Brown was admitted to the Kennic Falls facility

based on their assessment of his clinical needs, an

assessment that was unrelated to the appellant’s

presence at the St. Cloud facility. Agency File, Tabs

41 at 1-2 (statement of James Broda), 4n at 3 (state-

ment of John Puce!), 4m at 1 (statement of Siri Kraw-

chuk), 40 at 1-2 (statement of Irene Oberman), and 4t

at 1 (statement of Ronald Williams).

To support its allegation that the appellant was in-

volved in an intimate sexual relationship, the agency

relied extensively on Mr. Brown’s statement to the

investigators. He maintained in his statement that

he became involved with the appellant in September of

1988, that the relationship lasted six or seven months,

and that they had sexual relations almost every

weekend from mid-September 1988 until his discharge

from the medical center in November of 1988. See

Agency File, Tab 4j at 1 and 6. He also maintained

that he lied to the appellant’s supervisor in December

of 1988, in order to protect the appellant, when he told

the supervisor that he knew the appellant in North

Dakota in the early 1980s and refused to disclose to

the supervisor the existence of the relationship. Id.

at 2 and 7-8.

35a

Mr. Brown’s statement is bolstered by the joint

statement of his Alcoholics Anonymous sponsors,

Dale and Linda Willet. The Willets corroborate Mr.

Brown’s statement that the appellant and Mr. Brown

were friends and that Brown at least occasionally

would spend weekends at the appellant’s home in the

autumn of 1988, but they both admitted that they did

not know whether Mr. Brown and the appellant en-

gaged in sexual relations while he was an in-patient.

See Agency File, Tab 4r at 3-4.

Contrary to the administrative judge’s finding that

Mr. Brown’s statements were “general and inconsis-

tent,” Initial Decision at 9, we find Mr. Brown’s

statement about his relationship with the appellant to

be consistent and detailed. Mr. Brown provided sig-

nificant details about his relationship with the

appellant and specifically described the interior of her

home. See Agency File, Tab 4j. While his statement

is inconsistent with an earlier statement to the

appellant’s supervisor, Mr. Brown explained that he

refused to disclose the relationship in an effort to

protect the appellant. Id. at 7-8. Although the

Willets’ limited knowledge is of little probative value,

it does lend some support to Mr. Brown’s assertion

that he was involved in a relationship with the appel-

lant. 7

The administrative judge discredited the Willets’ state-

ment because they asserted that they reported the alleged inti-

mate relationship to agency employees in 1989 or 1990, but the

record shows that the report was made in December of 1988.

Initial Decision at 8-9. The administrative judge also discred-

ited the Willets’ statement because of the implausibility of the

statement that Mr. Brown told Mr. Willet that the appellant

purchased alcohol for him. Jd. According to the administra-

tive judge, neither Mr. Willet nor the agency presented any

36a

Thus, in contrast to the appellant’s self-serving

denials of an intimate relationship with Mr. Brown

while he was an in-patient at the medical center, Mr.

Brown’s statements have been detailed regarding the

existence of such a relationship. We can conceive of

no reason for Mr. Brown to fabricate the existence of

such a relationship and the appellant has provided

none. If Mr. Brown desired to please his current wife,

who was very upset about his being sent to the

Kennic Valley facility for treatment,’ it is likely that

he would have attempted to minimize the length of his

relationship with the appellant. Thus, we sustain the

charge of having an intimate relationship with an

in-patient of the medical center.

Also contrary to the administrative judge’s find-

ing, the agency did prove that the appellant engaged

in sexual relations with Mr. Brown while he was an

out-patient at the medical center.

The agency also argues that the appellant admitted

having sexual relations with Mr. Brown while he was

an out-patient from November 15, 1988, to March 2,

evidence that the alcohol purchase was ever reported, even

though such a purchase “would have had a far more direct

bearing on Mr. Brown’s sobriety than his asserted intimate

relationship with the appellant.” Id. at 9. The agency asserts

that the administrative judge erred in discrediting the Willets’

statement because of the discrepancies in dates, and we agree.

The fact that the Willets erred in recalling the date of a

situation that existed several years earlier is not-grounds to

discredit their entire statement. Additionally, the fact that the

Willets did not report Mr. Brown’s statement that the

appellant purchased alcohol for him is not grounds to discredit

their statement. Nevertheless, because of their limited knowl-

edge, their statement is of little probative value.

® See Agency File, Tabs 4m at 4-5 (statement of Siri

Krawchuk).

37a

1990. In a December 20, 1991 affidavit, Ronald Wil-

liams stated that Mr. Brown missed several out-pa-

tient appointments at the medical center between

November 15, 1988, and March 2, 1990. See Appeal

File, Tab 6, Affidavit of Ronald Williams at 1 and

accompanying list. Thus, we find that Mr. Brown was

an out-patient at the agency medical center after his

early November of 1988 discharge from its domicili-

ary unit. Since the appellant admitted, as mentioned

above, that she had sexual relations with Mr. Brown

on and off between November of 1988 until April of

1990, see Agency File, Tab 4k at 2, we also sustain the

charge that the appellant had an intimate relationship

with Mr. Brown while he was an out-patient.

The agency failed to prove the specification of the

falsification charge that the appellant persuaded Mr.

Brown to conceal the existence of their relationship.

The administrative judge properly found that the

agency failed to prove that the appellant persuaded

Mr. Brown in December 1989 to conceal from the

appellant’s supervisor the existence of their relation-

ship. To support this specification, the agency relied

on Mr. Brown’s statement to the agency investiga-

tors that the appellant told him that, if her supervisor

found out about the relationship, she would be in a lot

of trouble and would probably lose her job. See

Agency File, Tab 4j at 2. Mr. Brown also stated that

he had refused to say that he was involved in a rela-

tionship with the appellant because he wanted to

protect her and because he thought the agency would

“take my sex away.” Agency File, Tab 4j at 8. Thus,

according to Mr. Brown’s statement, while the

appellant told him of possible consequences if her

supervisor found out about the relationship, the

appellant never asked him to conceal their relation-

38a

ship; instead, his statement indicates that he decided

on his own to lie. Thus, the administrative judge

properly did not sustain this aspect of the falsification

charge.

The agency improperly charged the appellant with

providing false statements concerning her relation-

ship with Brown.

As discussed above, the agency charged the appel-

lant with providing false statements concerning her

relationship with Mr. Brown. Specifically, on review,

the agency points to the inconsistent statements that

the appellant has provided to it and asserts that these

statements demonstrate that the appellant falsified.

In Grubka v. Department of the Treasury, 858 F.2d

1570, 1574 (Fed. Cir. 1988), the court addressed the

situation where an agency charges an employee with

misconduct and separately charges him or her with

making a false statement in response to an agency

inquiry about the misconduct. The court in Grubka

found circuitous and without merit the administrative

judge’s reasoning in that appeal that, by proving the

underlying misconduct, the agency ipso facto proved

that Grubka’s denial of the misconduct was false and

therefore proved the separate offense of making a

false statement. Jd. The court in Grubka stated as

follows:

It has always been the rule and practice that a

person charged with an offense can deny the

charge and plead not guilty, either because he is

not guilty or to force the charging party to

prove the charge, and regardless of the outcome,

the denial is not itself a separate offense.

Otherwise, a person could never defend himself

against a charge, even though frivolous, for fear

39a

of committing another offense by denying the

charge. The decision of the [administrative

judge] denied Grubka his due process rights in

that it denied him the right to a trial on the

charge without due process of law.

Id. at 1575.

We recognize that the Board has previously held

that an agency may separately charge an employee

with misconduct and making false statements regard-

ing the alleged misconduct, when the falsification

concerns a matter of official interest to the agency.

See Greer v. U.S. Postal Service, 43 M.S.P.R. 180,

184-85 (1990); see also, e.g., Kane v. Department of

Veterans Affairs, 46 M.S.P.R. 203, 209 (1990); Ster-

ling v. Department of Defense, 46 M.S.P.R. 177,

185-86 (1990); Hornbuckle v. Department of the

Army, 45 M.S.P.R. 50, 54 n. 2 (1990); Hill v. Depart-

ment of the Army, 44 M.S.P.R. 607, 611-12 (1990).

Upon further consideration, however, we find that

such decisions are based on a faulty analysis of the

Federal Circuit’s decision in Grubka.

The agency specifically charged Grubka with

making 4 false statement in a matter of official inter-

est. Grubka, 858 F.2d at 1574. The Federal Circuit

stated, however, that such a charge “has no sub-

stance, is frivolous, and... it is not supported by

substantial evidence and is erroneous as a matter of

law. Id. By using the conjunctive “and” the

court made two separate findings: that the charge was

7 The Federal Circuit reaffirmed its holding in Grubka in

Beverly v. U.S. Postal Service, 907 F.2d 136, 137 (Fed. Cir.

1990), in finding that the administrative judge correctly held

that a charge of making a false statement in denial of another

charge should not have been stated as a separate offense.

40a

erroneous as a matter of law, and that the charge was

not supported by substantial evidence. Jd. Thus, the

court opined that a separate charge of making a false

statement regarding other alleged misconduct was

erroneous as a matter of law. Id.

The court also found that the agency’s charge must

fail because the appellant’s alleged false statement

“was not a denial of a matter of official interest to the

IRS, because it had nothing to do with the work of the

agency.” Id. at 1575. This holding pertained to the

agency’s failure to prove every element of its charge,

namely, that Grubka made a false statement and that

the false statement dealt with a matter of official

interest to the agency. Jd. Contrary to our previous

holdings, we find that this statement was not intended

to carve out an exception to the court’s holding that

the denial of another charge can never itself be a

separate offense; rather, it pertained to the evidence

presented in support of that charge.

In Greer and its progeny, the Board also mischar-

acterized the Federal Circuit’s due process concerns

by stating that the court was concerned with the

appellant’s Fifth Amendment right to remain silent.

On further consideration, we find that the court was

actually more concerned about an appellant’s due

process right to have an opportunity to be heard on a

charge, and not to have a falsification type charge

automatically sustained hy virtue of the sustaining of

an underlying charge. See Grubka, 858 F.2d at 1575.

In addition, the Board’s decision in Greer was

erroneous for stating that, as an alternative to falsi-

fying during an agency investigation, an employee

may refuse to answer questions. Greer, 43 M.S.P.R.

at 186. That statement ignored the fact that, under

Board and Federal Circuit precedent, an employee

4la

may be removed solely for remaining silent in re-

sponse to an inquiry if the employee is adequately

informed that he or she is subject to discharge for not

answering questions and that any replies and their

fruits cannot be employed in a criminal case. See

Weston v. Department of Housing & Urban Develop-

ment, 724 F.2d 943, 949 (Fed. Cir. 1983); Haine v.

Department of the Navy, 41 M.S.P.R. 462, 469 (1989).

Thus, to the extent that Greer, and cases that rely

on its holding, hold that an agency may separately

charge an employee with misconduct and making false

statements or a similar offense regarding the alleged

misconduct, we overrule them. We find that the

charge of making false statements was improper and.

that the administrative judge erred in considering it.

A 90-day suspension is the maximum reasonable

penalty for the sustained misconduct.

When the Board does not sustain all of the agency’s

charges and specifications, we must carefully con-

sider whether the sustained misconduct merits the

penalty imposed by the agency. Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 308 (1981). In this

case, we have found that, while employed as a social

services assistant, the appellant engaged in sexual

relations with an alcohol-dependent patient at the

agency medical center. The sustained charge is

serious since, as stated by the chief of the domiciliary

unit, patients are very vulnerable and dependent and

can be easily manipulated by the staff. Appeal File,

Tab 6 (statement of Ronald Williams) at 2. As further

stated by the chief of the domiciliary unit, personal

relationships can tempt dependency and hamper a

patient’s efforts at sobriety. Jd. Thus, we find that

the appellant’s relationship with Mr. Brown went to

the core of her duties as a social services assistant in

42a

the domiciliary unit. Moreover, the misconduct was

intentional and continued for some 18 months.

Although the Board has previously held that an

appellant’s false statements may be considered in

determining the maximum reasonable penalty, we are

not considering the appellant’s apparently false state-

ments here. If we are to give meaning to the Federal

Circuit’s statement that a person charged with an

offense may deny the charge and force the charging

party to prove the charge, we must hold that the

denial of misconduct cannot result in harm to the

accused. Otherwise, we are still saying that the

accused may only deny a charge at his or her own

peril. Accordingly, to the extent that previous Board

decisions have held that an appellant’s false state-

ments in response to an agency inquiry may be

considered in determining the penalty, we overrule

them.

Despite the seriousness of the appellant’s miscon-

duct, she has over 17 years of service with the agency,

at least the last year of which was rated at the highly

successful level. In addition, the record contains no

indication of any prior disciplinary actions against

her. Thus, we find that a 90-day suspension is suffi-

cient to impress upon the appellant the seriousness of

her misconduct, and that it constitutes che maximum

reasonable penalty for the sustained misconduct.

ORDER

Accordingly, we ORDER the agency to cancel the

appellant’s removal and to replace it with a 90-day

suspension effective September 26, 1991. See Kerr v.

National Endowment hr the Arts, 726 F.2d 730 (Fed.

Cir. 1984). The ageacy must accomplish this action

within 20 days of the date of this decision.

43a

We also ORDER the agency to issue a check to the

appellant for the appropriate amount of back pay,

interest on back pay, and other benefits under the

Office of Personnel Management’s regulations, no

later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in

good faith in the agency’s efforts to compute the

amount of back pay, interest, and benefits due, and to

provide all necessary information the agency re-

quests to help it comply. If there is a dispute about

the amount of back pay, interest due, and/or other

benefits, we ORDER the agency to issue a check to

the appellant for the undisputed amount no later than

60 calendar days after the date of this decision.

We further ORDER the agency to inform the appel-

lant in writing of all actions taken to comply with the

Board’s Order and of the date on which the agency

believes it has fully complied. If not notified, the

appellant should ask the agency about its efforts to

comply.

Within 30 days of the agency’s notification of com-

pliance, the appellant may file a petition for enforce-

ment with the regional office to resolve any disputed

compliance issue or issues. The petition should con-

tain specific reasons why the appellant believes that

there is insufficient compliance, and should include

the dates and results of any communications with the

agency about compliance.

This is the final order of the Merit Systems

Protection Board in this appeal. 5 C.F.R. §

1201.113(e).

NOTICE TO APPELLANT

You have the right to request the United States

Court of Appeals for the Federal Circuit to review the

Board's final decision in your appeal if the court has

jurisdiction. See 5 U.S.C. S 770 gal). You must sub-

mit your request to the court at the following

address: —

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no

later than 30 calendar days after receipt of this order

by your representative, if you have one, or receipt by

you personally, whichever receipt occurs first. See 5

U.S.C. S 7703(b)(1).

FOR THE BOARD: = / ROBERT E. TAYLOR

ROBERT E. TAYLOR

Clerk of the Board

Washington, D.C.

45a

CONCURRING OPINION OF CHAIRMAN

BEN L. ERDREICH

Jeanette M. Walsh v. Department of Veterans Affairs

CH-0752-92-0021-I-1

I concur in the majority opinion in this appeal

because it is consistent with the binding precedent of

the U.S. Court of Appeals for the Federal Circuit.

Nevertheless, I write separately to express my

concerns about how the Federal Circuit’s holdings

that control the Board’s decision in this case com-

port with federal statutory and regulatory require-

ments.

In Grubka and Beverly the Federal Circuit estab-

lished and affirmed the principle that a federal em-

ployee may not be disciplined for both an act of mis-

conduct and the false denial of that act of misconduct.

In other words, an employee may give an untrue

denial statement in response to an agency investiga-

tion into his alleged misconduct without the possibil-

ity of discipline for that statement (so long as the

underlying misconduct being investigated ultimately

is used to support a formal discip!inary charge

against the employee). In application, this principle

seems to conflict with several mandates that require

a federal employee to be truthful in dealings with his

federal employer.

For example, 18 U.S.C. § 1001 requires individuals

to be truthful in any statements given in a matter

within the jurisdiction of a federal agency, or suffer

the penalty of a fine of up to $10,000 and imprisonment

* Grubka v. Department of the Treasury, 858 F.2d 1570

(Fed. Cir. 1988) and Beverly v. United States Postal Service,

907 F.2d 136 (Fed. Cir. 1990).

46a

of up to five years. Title 5 of the Code of Federal

Regulations, section 5.4 (Civil Service Rule V)

requires employees to give testimony under oath

when required to by the Office of Personnel Manage-

ment, the Merit Systems Protection Board, or the

Office of Special Counsel. Agency inspectors general

investigating alleged fraud, federal security special-

ists investigating alleged security breaches, and EEO

investigators investigating alleged discrimination all

conduct inquiries on behalf of agencies and all rou-

tinely rely on the truthfulness of the statements

made by federal employees.

Under 18 U.S.C. § 1001 even individuals who are

being questioned about possible criminal wrongdoing

do not have the right to provide false information, yet

Grubka and Beverly hold that an employee being

questioned about possible non-criminal misconduct is

allowed to provide false information with impunity.

Although the former individual may exercise his

Fifth Amendment right to remain silent, the latter

does not enjoy that right and may not decline to

answer questions from his employer.’

Thus Grubka and Beverly have the anomalous

result that an employee may be required to respond to

an agency inquiry, but may not be required to respond

truthfully. They also give federal employees a privi-

lege not accorded to ordinary citizens who “may de-

cline to answer the question, or answer it honestly,

See Weston v. Department of Housing & Urban Develop-

ment, 724 F.2d 943, 948-49 (Fed. Cir. 1983) (a federal employee

may be removed solely for remaining silent in response to an

agency inquiry if the employee is adequately informed that he

or she is subject to discharge for not answering questions and

that any replies and their fruits cannot be used in a criminal

case).

47a

but [who] cannot with impunity knowingly and will-

fully answer with a falsehood.” Bryson v. United

States, 396 U.S. 64, 72 (1969).

Title 18 U.S.C. § 1001 criminalizes the making of a

false, fictitious, or fraudulent statement to a federal

department or agency by an employee regarding his

or her employment. Its application under Grubka and

Beverly apparently means that an employee could be

fined and imprisoned for making false, fictitious, or

fraudulent statements, but the employing agency

could not consider those statements in connection

with an adverse action based in part on any miscon-

duct at issue in the false, fictitious, or fraudulent

statements.

I am aware that a majority of federal circuit courts

of appeals has adopted the principle that the subject of

a criminal investigation may falsely deny a charge of

misconduct without violating 18 U.S.C. § 1001.“ How-

ever, I do not find that doctrine analogous to this

situation because (1) the administrative proceedings

in this case do not involve the Fifth Amendment right

to remain silent found in criminal proceedings, (2) the

statements made in Grubka and Beverly are more

than the simple denials of misconduct, and (3) the

false statements made by Ms. Walsh were made for

the purpose of retaining her federal position. This

% The “exculpatory no” doctrine is discussed in United

States v. Taylor, 907 F.2d 801, 803-06 (8th Cir. 1990); United

States v. Cogdell, 844 F.2d 179, 182-84 (4th Cir. 1988); United

States v. Medina De Perez, 799 F.2d 540, 542-47 (9th Cir. 1986);

United States v. Tabor, 788 F.2d 714, 716-19 (11th Cir. 1986);

United States v. Fitzgibbon, 619 F.2d 874, 876-81 (10th Cir.

1980): United States v. Chevoor, 526 F.2d 178, 181-84 (Ist Cir.

1975), cert. denied, 425 U.S. 935 (1976).

48a

last condition has been specifically referenced as a

situation not protected by the doctrine."

In Grubka the Court held that Mr. Grubka could

not be disciplined for either the false denial of the

charged misconduct or for giving a written statement

supporting that denial. In Beverly the Court held

that Ms. Beverly could not be disciplined for either

the false denial of the charged misconduct or for

providing false notarized statements from other

individuals supporting her untruthful denial. This is

clear direction to the Board that we also should re-

verse disciplinary charges that are based on the

denial of misconduct or on statements made in sup-

port of that denial.

Regardless of federal statutory and regulatory

mandates requiring employee honesty in dealings in

matters within the jurisdiction of a federal agency,

under Grubka and Beverly the Board is compelled not

to sustain any charges related to enforcing this

standard of truthfulness if the employee is denying

misconduct that is the basis for a separate formal

disciplinary charge against that employee.

In this case Ms. Walsh was charged with making

seven false statements.” One of those statements

was found by the Board not to be false. Of the remain-

ing six statements, five are specific denials of acts

that would constitute engaging in an intimate rela-

tionship with a patient, and the sixth is a falsehood

1 Paternostro v. United States, 311 F.2d 298, 305 (5th Cir.

1962), overruled by United States v. Rodriguez-Rios, 14 F.3d

1040 (5th Cir. 1994) (en banc); Marzani v. United States, 168

F.2d 133, 141-42 (D.C. Cir.), aff'd on appeal by an equally

divided Supreme Court, 335 U.S. 895 (1948).

Agency File, tab 4h.

49a

about a fact related to her relationship with that

patient. Since a separate charge that is the basis for

this removal is engaging in an intimate relationship

with a patient, the entire charge of making false

statements in an agency investigation must be set

aside as inconsistent with the rule in Grubka and

Beverly. This is true even though there are other

statutory or regulatory admonitions requiring truth-

fulness of federal employees.

I have concerns about how this decision following

Grubka and Beverly affects the standards of em-

ployee conduct basic to the ethical underpinnings of

our federal civil service. Accordingly, I concur with

the majority opinion but with the reservations

discussed above.

/s/ BEN L. ERDREICH

BEN L. ERDREICH

Chairman

[Decision Sheet Omitted]

50a

APPENDIX D

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

No. DA-0752-93-0295-I-1

LESTER E. ERICKSON, APPELLANT

DEPARTMENT OF THE TREASURY, AGENCY

MERIT SYSTEMS PROTECTION BOARD

Filed: June 1, 1994]

Before: ERDREICH, Chairman, PARKS, Vice Chair-

man, and AMADOR, Member.

OPINION AND ORDER

The appellant petitions for review of the July 21,

1998 initial decision that upheld his removal. We find

that the petition does not meet the criteria for review

set forth at 5 C.F.R. § 1201.115, and we therefore

DENY it. We REOPEN this case on our own motion

under 5 C.F.R. § 1201.117, however, AFFIRM the

initial decision IN PART, REVERSE the initial

decision IN PART, and MITIGATE the removal to a

15-day suspension.

5la

BACKGROUND

The agency removed the appellant from his Police

Sergeant position for: (1) “Making False Statements

in Matters of Official Interest”; and (2) “Conduct

Unbecoming a Supervisor.” Initial Appeal File (IAF),

Tab 8, Subtabs 4a, 4b, 41. The appellant filed a timely

petition for appeal in which he alleged that, in re-

moving him, the agency discriminated against him on

the basis of a handicapping condition and violated his

constitutional rights. IAF, Tab 2. The administra-

tive judge, deciding the appeal on the basis of the

parties’ written submissions, sustained both charges,

rejected the appellant’s claims of handicap discrimina-

tion and violation of his constitutional rights, and

affirmed the removal. IAF, Tab 26.

The appellant reiterates his handicap discrimina-

tion claim and his constitutional claims in his timely

petition for review. Petition for Review (PRF), Tab

1, The agency opposes the petition for review. PRF,

Tab 3.

ANALYSIS

The petition for review establishes no error; the

initial decision is affirmed in part.

The appellant does not identify in his petition for

review any legal error on the administrative judge’s

part with respect to the charges or his handicap dis-

crimination claim, nor does he identify any relevant

evidence that the administrative judge overlooked or

misinterpreted. We therefore deny the petition for

review. 5 C.F.R. § 1201.115(c). Having reopened this

appeal, and discerning no error in the initial deci-

sion’s sustaining charge (2) and rejecting the appel-

52a

lant’s handicap discrimination claim, we affirm those

findings.

Charge (1) cannot be sustained.

The agency specified in support of charge (1) that

the appellant “had knowledge of, and participated in,”

a series of anonymous harassing telephone calls re-

ceived by agency employees. The caller was referred

to as the “Mad Laugher” because he or she would

laugh wildly into the telephone and then hang up. The

agency further specified that the appellant gave a

sworn statement to an agency investigator in which

he denied knowing who had made the calls. It

therefore charged him with “Making False State-

ments in Matters of Official Interest” in violation of

the agency’s Minimum Standards of Conduct. IAF,

Tab 8, Subtab 41; see IAF, Tab 8, Subtab 4cc at 2.

Charge (1) appears to be based on the appellant’s

responses to question numbers 2, 6, 9, and 12 on the

list of questions that an agency investigator posed to

him on October 30, 1992. Question number 2 states,

“Approximate the number of occasions you made ‘Mad

Laugher’ calls and to whom by name?” The appellant

responded, “None.” Question number 6 states, “Ap-

proximate time you quit participating in “Mad

Laugher” calls.” The appellant responded, “I never

participated.” Question number 9 states, “Specifi-

cally, how many times did you ask your subordinates

to cease the ‘Mad Laugher’ calls?“ The appellant re-

sponded, “None, [bJecause I do not know who is doing

it.“ Question number 12 states in pertinent part,

“Are you willing to specifically state all those that

are participants in the ‘Mad Laugher’ telephone

calls.” The appellant responded, “No—I do not know

the true identification of the ‘Mad Laugher.’ In my

53a

opinion it is 95% of the police unit [and] also possibly

personnel in Production.” See LAF, Tab 8, Subtab 4x

at 5,7,9. Charge (2), “Conduct Unbecoming a Super-

visor,” was based on the appellant’s having encour-

aged an employee of an agency contractor to make a

“Mad Laugher” call to another agency police officer

during duty hours. IAF, Tab 8, Subtab 41.

An agency may not charge an employee with falsely

denying misconduct when it is separately charging

the employee with the underlying misconduct. Gru-

bka v. Department of the Treasury, 858 F.2d 1570,

1574-75 (Fed. Cir. 1988); Walsh v. Department of

Veterans Affairs, 62 M.S.P.R. 586, 595 (1994). Thus,

charge (1) cannot be sustained, for its essence is the

appellant’s failure to admit that he was involved in the

misconduct under investigation.

We note that the agency, in its submission to

the administrative judge, alleged that several police

officers witnessed the appellant making “Mad

Laugher” calls to agency employees during duty

hours. IAF, Tab 25 at 6. The agency did not charge

the appellant with making such calls, however.

Charge (1) is based entirely on the veracity of state-

ments that the appellant made to an agency official

who was investigating the calls. Although charge (1)

does make reference to the appellant’s “participat[ion]

in” the “Mad Laugher” calls, it is captioned Making

False Statements in Matters of Official Interest,” it

cites a provision of the agency’s Minimum Standards

of Conduct that relates solely to making false state-

ments, and the specification in support of the charge

relates only to the appellant’s answers to the agency

investigator’s questions. IAF, Tab 8, Subtabs 41, 4cc

at 2. Charge (2) is based entirely on the appellant’s

having encouraged an employee of an agency contrac-

54a

tor to make a call. IAF, Tab 8, Subtab 41. Neither

charge, therefore, was sufficient to put the appellant

on notice that he was being charged with making

Mad Laugher“ calls.

The Board will not sustain an adverse action on the

basis of charges that could have been brought, but

were not. Nazelrod v. Department of Justice, 54

M.S.P.R. 461, 466 (1992). Accordingly, we disregard

the agency’s allegation that the appellant made “Mad

Laugher” calls.

We therefore reverse the initial decision insofar as

it sustained charge (1).

The penalty of removal is mitigated to a 15-day

suspension.

Where, as here, not all of the charges upon which an

agency based an adverse action are sustained, the

Board must carefully consider whether the sustained

charges merit the penalty imposed. See Montalvo v.

U.S. Postal Service, 55 M.S.P.R. 128, 132-33 (1992).

Again, charge (2) is based on the appellant’s having

encouraged an employee of an agency contractor to

make a “Mad Laugher” call to anc-her agency police

officer during duty hours. IAF, Tab 8, Subtab 41.

This misconduct reflected poor judgment on the ap-

pellant’s part. On the other hand, it was not “dis-

ruptive,” as averred by the deciding official, IAF, Tab

23 at 2, for as stated in the notice of proposed removal,

the contractor’s employee did not make the call, IAF,

Tab 8, Subtab 41.

Further, although the appellant, as a supervisor, is

held to a higher standard of conduct than a non-super-

visory employee, Jackson v. U.S. Postal Service, 48

M.S.P.R. 472, 476 (1991), it does not appear from the

affidavit of the contractor’s employee that the ap-

55a

pellant encouraged her to make the telephone call

openly and in front of his subordinates, IAF, Tab 8,

Subtab 4y. Thus, his misconduct was not such that it

destroyed his ability to effectively supervise.

Additionally, although the deciding official con-

sidered the appellant’s having denied his involvement

in the “Mad Laugher” calls to have been “blatant

dishonesty,” LAF, Tab 23 at 2, we do not consider it as

an aggravating factor, see Walsh v. Department of

Veterans Affairs, 62 M.S.P.R. 586, 595-596 (1994) (an

employee’s false denial of misconduct is not an ag-

gravating factor in assessing the penalty for the

misconduct).

The appellant performed satisfactory service in his

Police Sergeant position for approximately two years

and four months. IAF, Tab 8, Subtabs 4a, 4bb. There

is no evidence to indicate that he has a record of

discipline for misconduct, and in any event, the

agency did not cite elements of his record in the

notice of proposed removal. IAF, Tab 8, Subtab 41; see

Underwood v. Department of Defense, 53 M.S.P.R.

355, 360 (an employee’s past disciplinary record can-

not be considered in determining the appropriate

penalty for misconduct if it was not cited in the notice

of adverse action), aff’d, 980 F.2d 744 (Fed. Cir. 1992)

(Table). For the single instance of encouraging an

employee of an agency contractor to make a “Mad

Laugher” call that the employee did not make, we

conclude that the maximum reasonable penalty, under

the circumstances, is a 15-day suspension.

ORDER

We ORDER the agency to cancel the appellant’s

removal and to replace it with a 15-day suspension,

retroactive to March 20, 1993. See Kerr v. National

56a

Endowment for the Arts, 726 F.2d 730 (Fed. Cir.

1984). The agency must accomplish this action within

20 days of the date of this decision.

We also ORDER the agency to issue a check to the

appellant for the appropriate amount of back pay,

interest on back pay, and other benefits under the

Office of Personnel Management’s regulations, no

later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in

good faith in the agency’s efforts to compute the

amount of back pay, interest, and benefits due, and to

provide all necessary information the agency re-

quests to help it comply. If there is a dispute about

the amount of back pay, interest due, and/or other

benefits, we ORDER the agency to issue a check to

the appellant for the undisputed amount no later than

60 calendar days after the date of this decision.

We further ORDER the agency to inform the

appellant in writing of all actions taken to comply

with the Board’s Order and of the date on which the

agency believes it has fully complied. If not notified,

the appellant should ask the agency about its efforts

to comply.

Within 30 days of the agency’s notification of com-

pliance, the appellant may file a petition for enforce-

ment with the regional office to resolve any disputed

compliance issue or issues. The petition should

contain specific reasons why the appellant believes

that there is insufficient compliance, and should

include the dates and results of any communications

with the agency about compliance.

This is the final order of the Merit Systems Pro-

tection Board in this appeal. 5 C. F. R. § 1201. 11300).

57a

NOTICE TO APPELLANT

‘You have the right to request further review of the

Board’s final decision in your appeal.

Discrimination Claims: Administrative Review

You may request the Equal Employment Opportu-

nity Commission (EEOC) to review the Board’s final

decision on your discrimination claims. See 5 U.S.C.

§ 7702(b)(1). You must submit your request to the

EEOC at the following address:

Equal Employment Opportunity Commission

Office of Federal Operations

P.O. Box 19848

Washington, DC 20036

You should submit your request to the EEOC no

later than 30 calendar days after receipt of this order

by your representative, if you have one, or receipt by

you personally, whichever receipt occurs first. See 5

U.S.C. § 7702(b)(1).

Discrimination and Other Claims: Judicial Action

If you do not request review of this order on your

discrimination claims by the EEOC, you may file

a civil action against the agency on both your

discrimination claims and your other claims in an

appropriate United States district court. See 5

U.S.C. § 7703(b)(2). You should file your civil action

with the district court no later than 30 calendar days

after receipt of this order by your representative, if

you have one, or receipt by you personally, whichever

receipt occurs first. See 5 U.S.C. § 7703(b)(2). If the

action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a handi-

capping condition, you may be entitled to representa-

58a

tion 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); 29 U.S.C. § 794a.

Other Claims: Judicial Review

If you choose not to seek review of the Board’s

decision on your discrimination claims, you may re-

quest the United States Court of Appeals for the

Federal Circuit to review the Board’s final decision

on other issues in your appeal if the court has juris-

diction. See 5 U.S.C. § 7703(b)(1). You must submit

your request to the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no

later than 30 calendar days after receipt of this order

by your representative, if you have one, or receipt by

you personally, whichever receipt occurs first. See 5

U.S.C. § 7703(b)(1).

FOR THE BOARD: /s/ ROBERT E. TAYLOR

RoBERT E. TAYLOR

Clerk of the Board

Washington, D.C.

[Decision Sheet Omitted]

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

No. PH-0752-93-0524-I-1

SHARON KYE, APPELLANT

DEFENSE LOGISTICS AGENCY, AGENCY

MERIT SYSTEMS PROTECTION BOARD

Filed: Oct. 4, 1994]

Before: EROREICH, Chairman, PARKS, Vice Chair-

man, and AMADOR, Member.

OPINION AND ORDER

The appellant petitions for review of the November

12, 1993 initial decision that sustained her removal.

For the reasons discussed below, we GRANT the

petition, REVERSE the initial decision in part,

AFFIRM the initial decision in part, and MITIGATE

the penalty to a 45-day suspension.

BACKGROUND

The agency removed the appellant from the GS-12

position of Supervisory General Supply Specialist

based on the following six charges: failure to safe-

guard her government Diners Club Card and personal

identification number (PIN) (first offense); failure to

60a

follow specific instructions for reporting loss, theft,

or compromise of her government Diners Club Card

and/or PIN; failure to fully participate in an official

investigation (first offense); misuse of her govern-

ment Diners Club card (first offense); providing false

information in an official investigation (first offense);

and failure to properly notify the agency of an

unscheduled absence (first offense).

The administrative judge found that the agency did

not prove two of the charges, i.e., failure to fully

participate in an official investigation and failure to

properly notify the agency of an unscheduled absence.

Also, he found that the appellant did not prove her

affirmative defenses of handicap discrimination based

on alcoholism and reprisal for filing an equal employ-

ment opportunity complaint. The administrative

judge sustained the agency’s removal action based on

the appellant’s sustained misconduct which included

her response to the agency's inquiry into that matter.

Initial Appeal File (IAF), Tab 18 (Initial Decision at

21).

In her petition for review, the appellant alleges that

the administrative judge erred in finding that she had

not demonstrated that she was an alcoholic, in failing

to address her allegation that the agency discrimi-

nated against her on the basis of the handicapping

condition of mood disorder and depression, and in not

considering the cumulative effect of these claimed

medical conditions in his adjudication of her handicap

discrimination claim.

ANALYSIS

The administrative judge erred by limiting his

analysis of the appellant’s handicap discrimination

claim to the condition of alcoholism, but this error

61a

was not prejudicial; the Board finds no merit to the

claim.

The appellant raised a claim of handicap discrimina-

tion on the additional basis of depression below by

submission of a letter from her physician diagnosing

her depression, and by counsel at the hearing. IAF,

Tab 17; Hearing Transcript at 6. Although the admin-

istrative judge alluded to the evidence concerning the

appellant’s condition of depression, ID at 16-18, he did

not analyze that matter in connection with the appel-

lant’s handicap discrimination claim. This adjudica-

tory error did not prejudice the appellant’s substan-

tive rights, however, because the appellant has failed

to demonstrate that her claimed medical conditions,

either alone or in tander caused her sustained mis-

conduct. See Panter v. Department of the Air Force,

22 M.S.P.R. 281, 282 (1984).

Specifically, we find that the appellant has failed to

make out a prima facie case of handicap discrimina-

tion. The necessary elements of a prima facie case of

handicap discrimination will vary according to the

particular facts and circumstances at issue. See

Dazey v. Department of the Air Force, 54 M.S.P.R.

658, 661 (1992). Generally, the elements of a prima

facie case of handicap discrimination based on a

mental illness such as depression include: a showing

that the person is a qualified handicapped person and

that the action appealed was based on his handicap;

and, to the extent possible, an articulation of a rea-

sonable accommodation under which the employee

believes he could perform the essential duties of his

position. Id. To make out a prima facie case of handi-

cap discrimination based on the condition of alcohol-

ism, an appellant must prove that he is a qualified

handicapped person and that his handicap caused his

62a

misconduct or that the misconduct was entirely a

manifestation of his handicap. See Davis v. Depart-

ment of the Army, 57 M.S.P.R. 203, 208-09 (1993).

Here, we note that the physician who diagnosed the

appellant’s mood disorder and depression, Patrick

Thrasher, M.D., first saw her July 23, 1993, almost

three months after the occurrence of the charged

misconduct. IAF, Tab 18 (ID at 16). Therefore, this

evidence provides scant support for a finding that the

appellant’s misconduct was caused by that condition.

_ Further, the administrative judge’s finding that the

appellant had not shown a causal relationship between

her claimed alcoholism and the sustained misconduct,

IAF, Tab 18 (ID at 19), similarly leads to a finding of a

lack of causation between the sustained misconduct

and the appellant’s depression or a combination of

those two claimed medical conditions. That is, the

administrative judge, assuming arguendo that the

appellant had established that she suffered from the

handicapping condition of alcoholism, nevertheless

correctly found that:

The agency did not specifically claim that the

appellant used her card to withdraw cash; but

rather, that she failed to safeguard her card and

PIN, failed to report its loss . ., and, on one

occasion, used the card for the rental of a motel

room. The appellant has not claimed that she does

not recall not missing the card, [or] not knowing of

her responsibilities with the card.

Id. Therefore, inasmuch as the appellant did not

establish causation, we find that she failed to make

out a prima facie case of handicap discrimination with

regard to the medical conditions of alcoholism or

63a

depression, or a combination of the two. See Dazey,

54 M.S.P.R. at 661.

The agency improperly charged the appellant with

providing false information in an official investiga-

tion.

In Walsh v. Department of Veterans Affairs, 62

M.S.P.R. 586 (1994), the Board, interpreting Grubka

v. Department of the Treasury, 858 F.2d 1570 (Fed.

Cir.1988), recently held that an agency may not, as a

matter of law, separately charge an employee with

making a false statement in defending a charge of

alleged misconduct. Here, the agency charged -he

appellant with misconduct in connection with her

government Diners Club Card. Under Walsh, the

agency’s additional charge of providing false informa-

tion in an official investigation regarding the alleged

misconduct cannot be sustained.

A 45-day suspension is the maximum reasonable

penalty for the sustained misconduct.

When not all of the charges are sustained, the

Board will consider carefully whether the sustained

charges warrant the penalty imposed by the agency.

Douglas v. Veterans Administration, 5 MSPB 313, 5

M.S.P.R. 280, 308 (1981). In this case, three of the six

charges against the appellant, including the charges

that the agency considered the most serious, IAF,

Tab 3, Subtab 1, have not been sustained. The sus-

tained charges, i.e., (1) failing to safeguard a govern-

ment Diners Club Card and PIN; (2) failure to follow

specific iastructions for reporting loss, theft, or

compromise of a government Diners Club Card and/or

PIN; and (3) one instance of misuse of a government

Diners Club Card, are serious. They must, however,

64a

be balanced against the appellant’s unblemished

record, which the agency considered excellent, IAF,

Tab 18 (ID at 21), and the fact that, of her own

volition, the appellant has taken full responsibility for

repaying the improper charges to her government

credit card. The Board finds therefore that a 45-day

suspension is the maximum reasonable penalty for

the sustained charges. See Nelson v. Veterans

Administration, 22 M.S.P.R. 65 (1984); Johnson v.

Department of the Treasury, 15 M.S.P.R. 731 (1983),

aff'd, 770 F.2d 181 (Fed. Cir. 1985) (Table).

ORDER

We ORDER the agency to cancel the appellant’s

removal and to substitute a 45-day suspension. See

Kerr v. National Endowment for the Arts, 726 F.2d

730 (Fed.Cir.1984). The agency must accomplish this

action within 20 days of the date of this decision.

We also ORDER the agency to issue a check to the

appellant for the appropriate amount of back pay,

interest on back pay, and other benefits under the

Office of Personnel Management’s regulations, no

later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in

good faith in the agency’s efforts to compute the

amount of back pay, interest, and benefits due, and to

provide all necessary information the agency re-

quests to help it comply. If there is a dispute about

the amount of back pay, interest due, and/or other

benefits, we ORDER the agency to issue a check to

the appellant for the undisputed amount no later than

60 calendar days after the date of this decision.

We further ORDER the agency to inform the

appellant in writing of all actions taken to comply

with the Board’s Order and of the date on which the

65a

agency believes it has fully complied. If not notified,

the appellant should ask the agency about its efforts

to comply.

Within 30 days of the agency’s notification of com-

pliance, the appellant may file a petition for enforce-

ment with the regional office to resolve any disputed

compliance issue or issues. The petition should con -

tain specific reasons why the appellant believes that

there is insufficient compliance, and should include

the dates and results of any communications with the

agency about compliance.

This is the final order of the Merit Systems Pro-

tection Board in this appeal. 5 C. F. R. § 1201.113(c).

NOTICE TO APPELLANT

You have the right to request further review of the

Board’s final decision in your appeal.

Discrimination Claims: Administrative Review

You may request the Equal Employment Opportu-

nity Commission (EEOC) to review the Board’s final

decision on your discrimination claims. See 5 U.S.C.

§ 7702(b)\1). You must submit your request to the

EEOC at the following address:

Equal Employment Opportunity Commission

Office of Federal Operations

P.O. Bex 19848

Washington, DC 20036

You should submit your request to the EEOC no later

than 30 calendar days after receipt of this order by

your representative, if you have one, or receipt by you

personally, whichever receipt occurs first. See 5

U.S.C. § 7702(b)(1).

66a

Discrimination and Other Claims: Judicial Action

If you do not request review of this order on your

discrimination claims by the EEOC, you may file a

civil action against the agency on both your dis-

crimination claims and your other claims in an appro-

priate United States district court. See 5 U.S.C. §

7703(b\(2). You should file your civil action with the

district court no later than 30 calendar days after re-

ceipt of this order by your representative, if you have

one, or receipt by you personally, whichever receipt

occurs first. See 5 U.S.C. § 7708(b)(2). If the action

involves a claim of discrimination based on race, color,

religion, sex, national origin, or a handicapping con-

dition, you may be entitled to representation by a

court-appointed lawyer and to waiver of any require-

ment of prepayment of fees, costs, or other security.

See 42 U.S.C. § 2000e5(f); 29 U.S.C. S 794a.

Other Claims: Judicial Review

If you choose not to seek review of the Board’s

decision on your discrimination claims, you may

request the United States Court of Appeals for the

Federal Circuit to review the Board's final decision

on other issues in your appeal if the court has

jurisdiction. See 5 U.S.C. § 7703(b)(). You must

submit your request to the court at the following

address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no

later than 30 calendar days after receipt of this order

by your representative, if you have one, or receipt by

67a

you personally, whichever receipt occurs first. See 5

U.S.C. § 7703(b)(1).

AMADOR, Member, issues a dissenting opinion.

For the Board:

ROBERT E. TAYLOR,

WASHINGTON, DC,

DISSENTING OPINION OF MEMBER AMADOR.

I dissent.

ö In determining whether an agency selected penalty

is to be upheld, the Board has long followed the

principles set forth in Douglas v. Veterans Admini-

stration, 5 MSPB 313, 5 M.S.P.R. 280 (1981). The

majority opinion exhibits a flawed understanding of

this decision and distorts the factual record to

support its conclusion that mitigation is warranted.

The first and most important of the twelve Douglas

factors is: \

The nature and seriousness of the offense, and its

relation to the employee’s duties, position, and

responsibilities, including whether the offense

was intentional or technical or inadvertent, or was

committed maliciously or for gain, or was

frequently repeated. Id., 5 M.S.P.R. at 305

There is no question that, under this factor, the

appellant’s offenses were extremely serious. The

appellant repeatedly and intentionally misused her

government credit card for her (or her son’s) personal

gain. A total of over $2000 in cash withdrawals were

made on 29 different occasions using the appellant’s

government credit card.

The second Douglas factor is the employee’s job

level and type of employment, including whether the

68a

employee was a supervisor. The appellant occupied a

supervisory position at a fairly high position within

the agency (Branch Director, GS-12). The Board has

traditionally held supervisory employees to higher

standards of conduct. See, e.g., Walcott v. U.S. Postal

Service, 52 M.S.P.R. 277, aff'd, 980 F.2d 744 (Fed. Cir.

1992) (Table).

In addition, the appellant knew her actions were

wrong, and she was clearly on notice of the rules that

were violated by her misconduct. See Perrodin v.

Department of Justice, 55 M.S.P.R. 407, 413 (1992).

Moreover, when the problem with her credit card was

first brought to her attention by the agency, she

assured the agency that the problem had been

corrected, but additional credit charges were made

after this time. Thus, the administrative judge cor-

rectly found the appellant had forfeited the agency’s

trust.

Finally, the appellant is not a good candidate for

rehabilitation because she has not shown remorse for

her misconduct. See Dolezal v. Department of the

Army, 58 M.S.P.R. 64, 71 (1993), aff'd, 22 F.3d 1104

(Fed. Cir. 1994). To the contrary, in order to explain

away her misconduct and to avoid its consequences,

the appellant presented the obviously manufactured,

and uncorroborated, claim that she was suffering

from depression, drinking heavily, and taking drugs

during this one 30 day period in her life. The ad-

ministrative judge clearly and persuasively analyzed

this claim. He observed that the appellant’s testi-

mony concerning the alleged effects of her drinking

was at great variance with that of her supervisors,

who testified that they had had daily contact with the

appellant and that they had never noticed any of the

classic signs of a substance abuse problem, i.e., no

69a

attendance problems, no appearance of impairment, no

odor of alcohol on her breath, no poor performance, no

incoherency in thought or expression, and no mood

swings or changes from her normal behavior. Based

on this evidence, the administrative judge correctly

found that there was no showing that the appellant’s

alleged personal problems had led to or caused her

misconduct.

The majority’s opinion does not provide any sub-

stantial reasoning or logic for its decision to mitigate

the penalty. The majority’s refusal to properly apply

Douglas represents a blatant violation of the principle

that the Board will not substitute its judgment for

that of the agency.

The penalty of removal should be affirmed.

70a

APPENDIX F

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

Nos. DE0752900226-B-2, DE0752900227-B-2

and DE0752900228-B-2

MERIT SYSTEMS PROTECTION BOARD

MICHAEL G. BARRETT, JEROME K. ROBERTS,

AND THOMAS J. WIGGINS, APPELLANTS

DEPARTMENT OF THE INTERIOR, AGENCY

(Filed: Nov. 9, 1994]

Before: ERDREICH, Chairman, PARKS, Vice Chair-

man, and AMADOR, Member.

OPINION AND ORDER

The appellants have timely petitioned for review of

the September 3, 1993 remand initial decision that

sustained the agency’s actions against them. For the

reasons set forth below, we GRANT the petition for

review under 5 C.F.R. § 1201.115, and AFFIRM the

initial decision as MODIFIED, still SUSTAINING

the adverse action with regard to Wiggins, but MITI-

GATING the penalty with regard to Barrett and

Roberts to a letter of reprimand.

71a

BACKGROUND

The agency’s actions against the appellants were

based on allegations that: (1) On the afternoon of June

9, 1988, Barrett, Roberts, and another agency em-

ployee left duty in a government pickup truck to help

build a fish pond in Wiggins’ backyard and took

agency equipment with them; (2) neither Barrett nor

Roberts took leave for the time they were not on duty

and both men subsequently denied knowledge of the

event; (3) Wiggins did not charge his subordinates,

Barrett and Roberts, and two other agency employ-

ees, Ray Ben and Dean Slim, with leave for the time

they worked on the fish pond;' and (4) Wiggins

falsified his own time and attendance report for the

following Monday, June 13, 1988, by incorrectly

indicating that he was at work. MSPB Docket No.

DE07529010226, Initial Appeal File (IAF 1), Tab 3,

Subtab 4h; MSPB Docket No. DE07529010227, Initial

Appeal File (IAF 2), Tab 3, Subtab 4h; MSPB Docket

No. DE07529010228, Initial Appeal File (IAF 3), Tab 3,

Subtab 4j. Asa result of this misconduct, the agency

suspended Barrett and Roberts for 30 days and re-

duced both of them in grade based on the charges of:

(1) Misrepresentation or concealment of a material

fact in connection with an investigation; (2) failure to

report an act of fraud, waste, and abuse; and (3)

making a false claim on a time and attendance report.

IAF 1, Tab 3, Subtabs 4a-4c, 4h; IAF 2, Tab 3, Subtabs

4a-4c, 4h. The agency reduced Barrett in grade from

a GS-11 soil scientist to a GS-9 soil scientist, IAF 1,

1 At the time that the agency took the adverse actions

against the appellants, neither Ben nor Slim were still em-

ployed by the agency. Thus, they were not charged with mis-

conduct.

72a

Tab 3, Subtab 4b, and reduced Roberts in grade from a

GS-9 soil scientist to a GS-7 physical science techni-

cian, IAF 2, Tab 3, Subtab 4b. The agency removed

Wiggins from his GS-12 supervisory physical scien-

tist position based on the charges of: (1) Misuse of

a government vehicle; (2) misuse of government

equipment; (3) misuse of government employees; (4)

falsification of government time and attendance

reports; and (5) making a false claim on a time and at-

tendance report. IAF 3, Tab 3, Subtabs 4a, 4b, 4j.

The appellants denied any misconduct and main-

tained that, although Wiggins was at his home during

the afternoon of June 9, 1988, he was on annual leave,

and that Roberts and Barrett were at work during the

period in question. The appellants claimed that

Wiggins was assisted by three friends and two day

laborers, none of whom were agency employees.

To support the charges, the agency primarily relied

on four witnesses: Ray Ben, Dean Slim, Stanley

Etsitty, and Ronald Martin. Ben and Slim were

agency employees at the time of the alleged mis-

conduct and testified that they went to Wiggins’

home, along with Barrett and Roberts, and helped

build the fish pond. Hearing Transcript (HT) at 37-40,

testimony of Ben; HT at 51-52, testimony of Slim.

Etsitty, also a former agency employee, testified that

he saw Roberts, Barrett, and Ben leave the agency

facility in the government pickup truck. HT at 7-8.

Martin, the driver of the cement truck that brought

the cement for the fish pond, testified that he saw

Roberts and Ben at Wiggins’ home. He also testified

that he saw a pickup truck with a United States

Government license plate parked in front of Wiggins’

home. HT at 69-71.

The appellants petitioned the Board for appeal of

the agency’s actions.* After affording the appellants

the hearing that they requested, the administrative

judge upheld all of the charges, except for the charge

that Wiggins falsified his own time and attendance

report for June 13, 1988, and sustained the actions.

IAF 1, Tab 20; IAF 2, Tab 20; IAF 3, Tab 20. The

appellants then petitioned for review of that initial

decision.

In an Opinion and Order, the Board granted the

appellants’ petition for review, vacated the initial de-

cision, remanded the appeal for additional fact find-

ings, and directed the administrative judge to issue a

new initial decision. Barrett v. Department of the

Interior, 54 M.S.P.R. 356 (1992). In a remand initial

decision, the adminis rative judge again upheld all of

the charges, except for the false time and attendance

report charge against Wiggins, and sustained the

actions. MSPB Docket No. DE0752900226B1, Re-

mand Initial Appeal File, Tab 12.

The appellants petitioned for review of that initial

decision and the Board issued an Opinion and Order

that granted the petition for review, vacated the

initial decision, remanded the appeal for additional

fact findings, and directed the administrative judge to

issue a new initial decision. Barrett v. Department of

the Interior, 57 M.S.P.R. 635 (1993). The administra-

tive judge issued the instant initial decision in which

he complied with the Board’s remand instructions and

2 Because the issues raised in the appeals of all three appel-

lants are very similar and are interrelated, the appeals were

consolidated by the administrative judge during the original

adjudication of the appeals. IAF 1, Tab 4; IAF 2, Tab 4; IAF 3,

Tab 4; see 5 C.F.R. § 1201.36(a)(1). The agency requested that

the appeals be consolidated, and none of the appellants objected.

74a

again upheld all of the charges, except for the false

time and attendance report charge against Wiggins,

and sustained the actions. MSPB Docket No.

DE0752900226-B-2, Remand Initial Appeal File, Tab 2,

Remand Initial Decision (RID). The appellants have

petitioned for review of the remand initial decision.

On review, the appellants argue that the admin-

istrative judge erred in his fact findings and credibil-

ity determinations in the remand initial decision.

MSPB Docket No. DE0752900226-B-2, Petition for

Review File (PFRF), Tab 1, Petition for Review

(PFR). The agency has timely responded in opposi-

tion to the petition for review. PFRF, Tab 3.

ANALYSIS

The Board will not consider the appellants’ reply to

the agency’s response to the petition for review.

The agency’s response to the petition for review is

styled as a “Cross Petition for Review,” but it raises

no allegations of error by the administrative judge in

the remand initial decision and thus only constitutes

a response to the petition for review. Id. In a notice

acknowledging the agency’s submission, the Clerk of

the Board afforded the appellants 25 days to respond.

PFRF, Tab 4. Because the agency’s submission

raises no allegations of error by the administrative

judge, it should not have been treated as a cross

petition for review and the appellants should not have

been afforded the opportunity to respond to it. Thus,

the record on review closed 25 days after the date

of service of the petition for review. 5 C.F.R.

§ 1201.114(d), (i); PFRF, Tab 2. A party may not file

additional evidence or argument after the close of the

record on review unless the party shows that the

75a

evidence was not readily available before the record

closed. 5 C. F. R. § 1201. 114).

We have not considered the appellants' reply to the

agency’s submission titled a “cross petition for re-

view” which, as explained above, only constituted a

response to the petition for review. See PF RF, Tab 5.

Although an appellant has a right to reply to an

agency’s cross petition for review, there is no right to

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.