# Petition for Writ of Certiorari — LaChance v. Erickson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0054%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 522 U.S. 262 ## 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 U. 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. II 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 V 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 V. 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) 2 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 3 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 4 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 5 „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 6 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 7 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., 9 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 10 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 _ 11 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 12 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 13 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- 14 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- 15 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- | es BS + 88134 111 Be 16 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. 17 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”). 18 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 19 “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 20 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 21 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 22 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 V. 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) 2a 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 3a 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 4a 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 5a 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.” 6a 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 7a 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 8a 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. 9a 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 2. 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 U. 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 nn Ha 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0054%3A02. Public record. Not legal advice.