Opposition Brief — Ma v. TRW, Inc.

No. 94-1064 aaa

In The Supreme Court

OF THE

United States

OCTOBER TERM, 1994

JACK Ma,

Petitioner,

VS.

TRW INc.,

Respondent.

On Petition For A Writ Of Certiorari

To The California Court Of Appeal

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

MUNGER, TOLLES & OLSON

TERRY E. SANCHEZ

(Counsel of Record)

Marc T. G. Dworsky

355 South Grand Avenue

Suite 3500

Los Angeles, California

90071-1560

Telephone: (213) 683-9100

FAX: (213) 687-3702

Counsel for Respondent

January 17, 1995

Bowne of Los Angeles, Inc., Law Printers (213) 627-2200

——— inte}

BEST AVAILABLE COPY

3

i

QUESTIONS PRESENTED

Whether this Court should grant certiorari to review the

California Court of Appeal’s conclusion that TRW, a

private corporation, did not become a state actor because

its conduct in seeking to interview Petitioner regarding a

potential security violation and in terminating him for

refusing to appear without counsel at the contemplated

interview was neither encouraged nor required by the

government.

Whether this Court should grant certiorari to review the

California Court of Appeal’s conclusion that, even if

TRW were a state actor, TRW did not violate Peti-

tioner’s Fifth Amendment privilege against self-incrimi-

nation by discharging him for his refusal to appear

without counsel at a noncustodial interview.

‘i

TRW INC. SUBSIDIARIES AND AFFILIATES

Active Control Systems Limited

Comcred, S.A. de C.V.

Componentes Venezolanos de Direccion, S.A.

Fuji Oozx Inc.

Hopewell International Insurance Ltd.

United Insurance Company

Monitoring Technology Corporation

Moresa, S.A. de C.V.

Nippon Stud Welding Company, Limited

Rane Power Steering Limited

Servicred, S.A. de C.V.

Shin Han Valve Industrial Company, Ltd.

Sybase, Inc.

Toyoda TRW Automotive Inc.

TRW Australia Holding Limited

TRW-DAS, as.

Polimatic Eletrometalurgica Ltda.

Quality Safety Systems Company

TRW do Brasil, S.A.

TRW Module Systems S.A.

TRW Fuji-Serina Co., Ltd.

TRW Fuji Valve Inc.

TRW Koyo Steering Systems Company

TRW Keystone Powder Metal Products Company

TRW REDI Property Data

TRW Sabelt S.p.A.

TRW Seat Belt Systems (Poland) Ltd.

TRW Steering Co. Ltd.

TRW Steering & Suspension (Malaysia) Sdn. Bhd.

TRW Controls & Fasteners, Inc.

Wu Chou Valve Industrial Co., Ltd.

ena at hel sate Laelia hk etme

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................46-- i

TRW INC. SUBSIDIARIES AND AFFILIATES ii

STATEMENT OF THE CASE.................. 2

A. TRW’S INTERNAL SECURITY

DIV VEBECRRE IND 6 ccc ccc epee ccc ccees 2

B. TRW’S ATTEMPTS TO INTERVIEW

| eae 3

C. THE PROVISIONS OF THE ISM ........ 5

D. THE OPINION BELOW ................. 5

REASONS FOR DENYING THE WRIT ........ 7

I. CERTIORARI SHOULD BE DENIED BE-

CAUSE THE LOWER COURT'S STATE

ACTION RULING CORRECTLY AP-

PLIED DECADES OF SUPREME COURT

JURISPRUDENCE IN CONFIRMING

THAT PRIVATE COMPANIES CAN COM-

PLY WITH THEIR CONTRACTUAL OB-

LIGATIONS TO THE GOVERNMENT

WITHOUT BECOMING GOVERNMENT

iv

TABLE OF CONTENTS

B

II. CERTIORARI SHOULD BE DENIED

BECAUSE THIS COURT’S JURISPRU-

DENCE COMPELS THE CONCLUSION

THAT TRW WAS NOT A GOVERNMENT

Fs rrr ren rey yr oe 9

A. Well-Established Supreme Court Jurispru-

dence Establishes That A Private Entity

Only Becomes A Government Actor Where

Its Conduct Is Specifically Dictated By The

Government, Not Merely Because Its Con-

B. Contrary To Petitioner’s Assertion, This

Court Has Not Tacitly Renounced The

Principles Set Forth In The State Action

: Re ee oe ers et ere se eee 14

III. CERTIORARI SHOULD BE DENIED

BECAUSE PETITIONER ULTIMATELY

SEEKS REVIEW OF THE LOWER

COURT’S CONCLUSIONS OF FACT..... 19

IV. CERTIORARI SHOULD BE DENIED

BECAUSE THE ISSUE OF A PURPORTED

RIGHT TO AN ADVISORY STATEMENT

WAS NEITHER PRESENTED TO NOR

DECIDED BY THE COURT BELOW ..... 19

V. CERTIORARI SHOULD BE DENIED

BECAUSE THIS COURT WOULD HAVE

TO HYPOTHESIZE THE EXISTENCE OF

A SERIES OF FACTS TO REACH THE

ABSTRACT CONSTITUTIONAL QUES-

TION POSITED BY PETITIONER ....... 21

VI.

VIL.

VIII.

Vv

TABLE OF CONTENTS

CERTIORARI SHOULD BE DENIED

BECAUSE PETITIONER INVOKED

ONLY A RIGHT TO COUNSEL, NOT THE

SEPARATE PRIVILEGE AGAINST SELF-

ek rer rer eee ree

A. A Demand For Counsel At A Noncustodial

Interview Does Not Invoke The Privilege

Against Self-Incrimination .............

B. Petitioner Seeks To Expand The Right To

Counsel To Noncustodial Interviews, Con-

trary To Well-Established Precedent Of

pO Re ee ee ae

CERTIORARI SHOULD BE DENIED

BECAUSE EVEN THE STATE CAN PUN-

ISH ONE WHO ATTEMPTS TO CIRCUM-

VENT THE INVESTIGATIVE PROCESS

BY REFUSING TO APPEAR OR ASSERT-

ING A BLANKET INVOCATION OF THE

FUREY PRE wn ok obs Ao ers Oe wd wee

A. This Court Has Held That The State Can

Punish An Individual For Refusing To Ap-

pear Without Impermissibly Burdening The

Privilege Against Self-Incrimination .....

B. Even If Petitioner Had Invoked The Privi-

lege, Any Such “Blanket Invocation” Of

The Privilege Is Legally Ineffective ......

CERTIORARI SHOULD BE DENIED

IF THIS COURT CONCLUDES THAT

EITHER THE STATE ACTION OR THE

FIFTH AMENDMENT ISSUE IS NOT

WUPee SOE GPE REPAIR ones cSecsewedeets

CRP UI 5 cb ect ec bas edie vccewit crest

4

23

23

24

26

26

29

vi

TABLE OF AUTHORITIES

Cases

Page

Anglade v. Sprague, 822 F.2d 1035 (11th Cir. 1987) 29

Asherman v. Meachum, 957 F.2d 978 (2d Cir. 1992) 28

Baxter v. Palmigiano, 425 U.S. 308 (1976)........ 25

Becker v. Philco Corp., 372 F.2d 771 (4th Cir.), cert.

pe eee eee eee 18

Beckwith v. United States, 425 U.S. 341 (1976).... 25

Blum v. Yaretsky, 457 U.S. 991 (1982) ...... 8,11, 12,18

Browning-Ferris Industries of Vermont, Inc. v. Kelco

Disposal, Inc., 492 U.S. 257 (1989) ............ 21

California v. Beheler, 463 U.S. 1121 (1983) ....... 25

Communist Party of the United States v. Subversive

Activities Control Bd., 367 U.S. 1 (1961) ....... 22

EEOC v. Federal Labor Relations Authority, 476 U.S.

ED CURE der dbase Beck a or es hb ce ee cs he 21

Edmonson v. Leesville Concrete Co., 500 U.S. 614,

ere se cy, eS, Shee 14, 15, 16, 17

Edwards v. Arizona, 451 U.S. 477 (1981) ......... 25

Fannon v. United States, 441 U.S. 948 (1979) ..... 16

Grabinger v. Conlisk, 320 F.Supp. 1213 (1970) afd,

ee kg ke eC! er roe 28

Gulden v. McCorkle, 680 F.2d 1670 (Sth Cir. 1982),

cert. denied, 459 U.S. 1206 (1983) ............. 27

Jackson v. Metropolitan Edison Co., 419 U.S. 345

6, SRR eer re HIG eee 8,9

J.E.B. v. Alabama ex rel. T.B., — U.S. —, 114 S.Ct.

RAGS Ce 6 Sik ev Ch RE RS AT 15

Kitchens v. Bowen, 825 F.2d 1337 (9th Cir. 1987),

cert. denied, 485 U.S. 934 (1988) .............. 13

vii

TABLE OF AUTHORITIES

CASES

Page

Lefkowitz v. Cunningham, 431 U.S. 801 (1977).... 27

Lefkowitz v. Turley, 414 U.S. 70 (1973) .......... 27

Lugar v. Edmondson Oil Co., 457 U.S. 922

CORR obo SWE S SNe CCTs eee ni'n owe oes 10, 11, 13

McKeesport Hospital v. Accreditation Council for

Graduate Medicine Education, 24 F.3d 519 (3d Cir.

a ee er “> Se eee 13

Minnesota v. Murphy, 465 U.S. 420

GES Fas Kedb ces ecnd adios 23, 24, 25, 26, 27, 28, 29

Miranda v. Arizona, 384 U.S. 436 (1966) ....... 6, 20, 25

Pinhas v. Summit Health, Ltd., 894 F.2d 1024 (9th

Cir. 1989 (en banc), cert. denied, 498 U.S. 893

(Se ers er rr ere eee 13

Rendell-Baker v. Kohn, 457 U.S. 830

(0 er eee eee eee 8, 12, 13, 18

San Francisco Arts & Athletics, Inc. v. United States

Olympic Committee, 483 U.S. 522 (1987)....... 13

United States v. Carroll, 567 F.2d 955 (10th Cir.

gg Perr rs eet errr er Peres he. eee 29

United States v. Davis, 482 F.2d 893 (9th Cir. 1973) 15

United States v. Gumeriock, 590 F.2d 794 (9th Cir.),

cert. denied sub nom., Fannon v. United States, 441

NEE os cic ot peesscncapsesancsas« 15, 16

United States v. Malnik, 489 F.2d 682 (Sth Cir.), cert.

denied, 419 U.S. 826 (1974) .........---.-005- 29

United States v. Mandujano, 425 U.S. 564 (1976)... 27

United States v. Ogden, 485 F.2d 536 (9th Cir. 1973),

cert. denied, 416 U.S. 987 (1974) .........++--- 15

United States v. Orleans, 425 U.S. 807 (1976) ..... 8, 9

TABLE OF AUTHORITIES

CASES

Page

United States v. Rea, 678 F.2d 382 (2d Cir. 1982) ... 24

United States v. Solomon, 509 F.2d 863 (2d Cir.

SPUN <6:5:6a x chee GRA a OUR eee ee eee tes 8 8, 18

United States v. Stevens, 601 F.2d 1075 (9th Cir.),

cert. denied, 444 U.S. 917 (1979) .............. 18

West v. Atkins, 487 U.S. 42 (1988) .............. 17, 18

Rules

California Rules of Court, Rule 29(b) ............ 21

Statutes

Code of Federal Regulations, Title 32

ek Ge eer yer rere 17

ys MN oh dn 5 hs ne ak ae oa oe 17

Be, Pens < oxs 5 bs we neces Cas 4a eee 17

United States Constitution, Fifth Amendment .. .6, 25, 28

ee ete ee

No. 94-1064

In The Supreme Court

OF THE

United States

OCTOBER TERM, 1994

JACK Ma,

Petitioner,

vs.

TRW Inc.,

Respondent.

On Petition For A Writ Of Certiorari

To The California Court Of Appeal

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

In this state wrongful termination case, Petitioner alleged

that his employer, TRW Inc. (“TRW”), deprived him of

his constitutional right to an attorney when it terminated

him for refusing to attend a work-related interview without

counsel. The California Court of Appeal, applying well-

established preceden: of this Court, held that TRW was not

a state actor, and that, even if it were, Petitioner had no

right to counsel.

In order to secure effective relief from this Court, Peti-

tioner ultimately must obtain a reversal of both of the

foregoing rulings. However, neither was incorrectly decided

and neither merits this Court’s attention. The lower court’s

rulings rest upon a straightforward and correct application of

2

decades of this Court’s precedent, do not conflict with any

decision of this or any other court, and effect absolutely no

change in the law. Further, although a contrary decision,

heralding new rules of law that all defense contractors are

subject to the Constitution in their employee relations or

that employees have a right to counsel at noncustodial

interviews, probably would raise an issue of national impor-

tance, the lower court’s principled refusal to introduce any

such new rules does not do so.

Further, for the first time, Petitioner attempts to raise a

purported question whether TRW was required to provide

an advisory statement respecting his privilege against self-

incrimination. Even if this Court were inclined to consider

that issue, this case is a poor vehicle for doing so because

that issue never was raised below at trial or on appeal.

Equally important, it is a purely hypothetical issue that is

not presented by the facts of this case.

STATEMENT OF THE CASE

A. TRW’S INTERNAL SECURITY

INVESTIGATIONS

TRW is a privately-owned company that, at times, con-

tracts to provide goods and services to the United States

Government. In connection with its contracts involving

classified information, TRW entered into a contract with the

Defense Investigative Service (“DIS”), an administrative

agency within the Department of Defense. Under that

contract, TRW agrees to safeguard classified information

and maintain a system of security procedures in accordance

with the DIS’s Industrial Security Manual (“ISM”). Ap-

pellant’s Appendix in Support of Petition for Writ of Man-

date [hereinafter, “Rec.”] at 709. Under the ISM, TRW

also agrees to report certain security-related information for

the government’s independent investigation and evaluation.

Rec. at 711. The procedures for implementing the ISM are

a Pn ReE Vt

ae RR ME a 8

3

administered and executed entirely by TRW employees,

subject only to periodic audits by DIS. Appendix to Petition

for Certiorari (““Pet. App.”) at A7-A8.

Generally, TRW conducts internal security inquiries by,

among other things, informally interviewing employees.

Rec. at 1407. Interviews are conducted in an open cubicle

with five-foot-high partition walls and no door. Jd. at 1405-

09, 1893-96. It is undisputed that an employee may choose

not to speak during a security interview and is free to leave

at any time. Jd. at 1408-09, 1895. TRW’s security depart-

ment has no police powers, and its investigators are not

deputized, carry no weapons, wear no uniforms or badges,

and make no arrests. Pet. App. at A9. Nor does TRW

security have any authority to terminate an employee who

refuses to answer questions. Rec. at 1410. It is “uncontro-

verted” that the government has absolutely no involvement

in such interviews. Pet. App. at A9.'

B. TRW’S ATTEMPTS TO INTERVIEW

PETITIONER

In November 1985, a fellow employee reported that

Petitioner had made unreported contacts with foreign na-

tionals, used sensitive language over the telephone, and

' Although Petitioner seeks to mischaracterize TRW’s security investi-

gations as the first step toward a “criminal prosecution” (see, ¢.g.,

Petition at 17), the undisputed evidence is to the contrary. To begin

with, even DIS — which promulgates the ISM — is not a criminal law

enforcement agency and has authority to conduct only administrative

investigations. Rec. at 710. Second, Petitioner's own expert admitted

that in his 30 years of experience he never had seen a defense contrac-

tor’s internal security investigation turn into a criminal prosecution. Jd.

at 1548-51. Third, the evidence established that “[i]f, during the course

of an internal investigation TRW became aware of the potential for

criminal charges, TRW would cease its investigation and notify the FBI;

TRW had no participation in any subsequent investigation” that might

occur thereafter. Pet. App. at A31-A32.

4

claimed to be the head of an international consortium of

scientists studying “quantum gravity reversal” theory — an

idea from the realm of science fiction. Jd. at A9-A10. TRW

undertook a routine investigation to determine if Petitioner

had violated either its own internal security rule proscribing

unreported contacts with all foreign nationals, or DIS’s

narrower rule regarding contacts with persons from certain

designated countries. Rec. at 1391-92, 1404, 1419, 1889. As

part of that investigation, TRW’s investigator on the case

attempted by telephone to arrange an interview with Peti-

tioner at the latter’s convenience. Jd. at 1085, 1100. He

assured Petitioner — and his counsel — that this was not a

criminal investigation. Nonetheless, Petitioner refused to

appear for the interview without his attorney. Pet. App. at

Al12-A13.

TRW then sent Petitioner a letter informing him of his

duty to attend the interview and directing him to make an

appointment or face termination. Petitioner never appeared

for an interview. TRW subsequently reported to the Defense

Industrial Security Clearance Office (“DISCO”) (the gov-

ernment agency responsible for determining eligibility for

clearances) pursuant to § 6b(1) of the ISM that Petitioner

was alleged to have made unreported contacts with foreign

nationals using sensitive language, and had refused to appear

for an interview regarding those allegations. Pet. App. at

Al3-A14,

After making this report, when it had no conceivable

remaining responsibilities to the government, TRW — like

any responsible employer — continued to seek to interview

Petitioner to alleviate its continuing internal concerns. Rec.

*After Petitioner failed to attend the interview, TRW’s investigator

called the FBI as a precautionary measure to inform it of Petitioner's

refusal to be interviewed regarding alleged foreign contacts. Pet. App. at

Al13. There is no evidence that the FBI ever undertook an investigation

of Petitioner.

ate Seat A ENC A eb * od Clk

AN eo ANI oa Hi Paw a4

5

at 362. Petitioner continued to refuse to be interviewed by

TRW without his counsel present.’ Jd. at 1204. Eventually,

TRW terminated Petitioner for insubordination. Pet. App.

at Al4.

C. THE PROVISIONS OF THE ISM

The two provisions of the ISM arguably at issue in this

case are sections 6b(1) and 7. TRW issued a report to

DISCO pursuant to section 6b(1) of the ISM. Sec-

tion 6b(1) requires contractors to “submit reports [to

DISCO]... of any information coming to their attention”

suggesting that security access may be inconsistent with the

national interest. Rec. at 48-49 (emphasis added). The ISM

nowhere requires a defense contractor to conduct any inves-

tigation whatsoever under § 6b.

Section 7 of the ISM requires “reports” of actual or

suspected compromises of classified information, and that

the contractor conduct a “preliminary inquiry” to ascertain

the circumstances surrounding any such compromise. How-

ever, the ISM does not address whether the contractor

should go so far as to interview the employee alleged to have

compromised classified information, whether an employee

has a right to counsel in connection with any such inquiry, or

the consequences of an employee’s failure to cooperate.

D. THE OPINION BELOW

Petitioner alleged that his termination for refusing to be

interviewed without counsel constituted a wrongful dis-

charge in violation of public policy. In order to prevail,

Petitioner had to establish first that TRW was a government

*However, Petitioner met voluntarily, without his counsel, for 3%

hours with a DIS special agent to discuss these same issues. Rec. at

1206-16. TRW was not involved in the government’s investigation in any

way. Id. at 828-30, 1210, 1410. No criminal charges or civil citation

ensued. Jd. at 1232-33.

6

actor and, if so, that he had a right to counsel at the

contemplated interview. The California Court of Appeal

rejected both contentions.

The Court of Appeal held that the state action analysis

turned on whether the particular conduct challenged by

Petitioner was “specifically required or encouraged by the

government.” Pet. App. at A25. It concluded that this

inquiry was not met. Specifically, the court concluded that,

although § 7 of the ISM required TRW to initiate a “pre-

liminary inquiry,”

the ISM did not specify how this preliminary inquiry

was to be conducted. The ISM did not even specifically

require that an interview of the suspected employee be

conducted much less mention the presence of counsel.

Despite a myriad of detailed procedures [about other

matters] specified in the ISM, Ma points to none

which gives any direction concerning the participation

of a lawyer.

Id. at A23 (emphasis original). The court observed that,

quite apart from the ISM, the undisputed evidence con-

firmed that the government had absolutely no involvement

in TRW’s conduct: “‘[{The government] does not partici-

pate in, coordinate with or direct a contractor’s internal

security investigations, even if they are conducted to aid in

[the contractor’s] compliance with its reporting obligations

under the ISM.’ ” Jd.

Although unnecessary in light of its determination that

TRW was not a government actor, the court below also

unanimously rejected Petitioner’s contention that he had a

right to counsel at the TRW interview under Miranda v.

Arizona, 384 U.S. 436 (1966). It held that although an

individual has a Fifth Amendment privilege against self-

incrimination, the right to the presence of counsel to imple-

ment that privilege does not arise absent a custodial

a eee ee ne .

7

interrogation. Pet. App. at A27. The court found that

because Petitioner failed to attend the interview, he had not

been subjected to a custodial interrogation, and that, even if

he had appeared, the interview would not have been custo-

dial. Jd. at A30-A32.

Petitioner also contended below that, under the Fifth

Amendment, “the government has no power to punish an

individual for refusing to voluntarily submit to interroga-

tion.” Jd. at A32. The Court of Appeal unanimously dis-

missed this argument as “misconceived” and held that even

the government may terminate an employee “who refuses to

answer questions directly, specifically and narrowly related

to the performance of the employee’s duties.” Id. at A33.‘

REASONS FOR DENYING THE WRIT

I. CERTIORARI SHOULD BE DENIED BECAUSE

THE LOWER COURT’S STATE ACTION RULING

CORRECTLY APPLIED DECADES OF SUPREME

COURT JURISPRUDENCE IN CONFIRMING

THAT PRIVATE COMPANIES CAN COMPLY

WITH THEIR CONTRACTUAL OBLIGATIONS TO

THE GOVERNMENT WITHOUT BECOMING

GOVERNMENT ACTORS.

Petitioner argues that the decision below somehow trans-

forms the employment relations of thousands of Californian

defense contractors and their employees by creating a pur-

portedly “idiosyncratic rule... that, in California, defense

contractors implementing a government-mandated security

program are not state actors.” Petition at 10-11. This asser-

tion presupposes the existence of a contrary:rule at some

time, in some court, somewhere in this nation. Yet Peti-

“Petitioner subsequently sought a rehearing before the Court of

Appeal and, thereafter, review by the California Supreme Court. Both

requests were denied summarily.

8

tioner fails to cite any such authority, because no such

authority exists. As discussed in Part II below, the cases in

this Court are legion holding that mere obeisance to regula-

tory or contractual duties imposed by the government will

not transform a private entity into a government actor. See,

e.g., Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350

(1974); Blum v. Yaretsky, 457 U.S. 991, 1004 (1982);

Rendell-Baker v. Kohn, 457 U.S. 830, 840-41 (1982);

United States v. Orleans, 425 U.S. 807, 815-16 (1976).

The lower court’s fidelity to these precedents was neither

novel nor remarkable. It concluded simply that TRW — like

all other private defense contractors in this nation — was not

a government actor when it sought to interview its employee

regarding his bizarre and erratic behavior, and terminated

him for failing to appear for an interview as directed. This

decision wrought absolutely no change in the law.

Ultimately, it is Petitioner himself who seeks a revolution-

ary rule, one that indeed would unhinge the state action

doctrine from its traditional moorings and thereby transform

thousands of defense contractors (not to mention a vast

array of other businesses that serve important public inter-

ests) into government actors.”

‘Obligations similar to those imposed upon TRW by virtue of the

ISM are the norm, not the exception, in today’s regulatory society. As

Judge Friendly observed in United States v. Solomon, 509 F.2d 863, 870

(2d Cir. 1975): “There would be a complete breakdown in the regula-

tion of many areas of business if employers did not carry most of the

load of keeping their employees in line and have the sanction of

discharge for refusal to answer what is essential to that end.”

9

Il. CERTIORARI SHOULD BE DENIED BECAUSE

THIS COURT’S JURISPRUDENCE COMPELS

THE CONCLUSION THAT TRW WAS NOT A

GOVERNMENT ACTOR.

A. Well-Established Supreme Court Jurisprudence

Establishes That A Private Entity Only Becomes A

Government Actor Where Its Conduct Is Specifi-

cally Dictated By The Government, Not Merely

Because Its Conduct Furthers Some Important

Federal Objective.

This Court long ago rejected the expansive conception of

constitutional responsibility advocated by the Petitioner —

that merely because a defendant is a large, regulated com-

pany whose business somehow furthers some important

federal objective, such as the “national security effort,” it

thereby is transformed into a governmental actor.

cA ntti nb

For example, in Jackson v. Metropolitan Edison Co., 419

U.S. 345, 354 (1974), this Court stated that:

Doctors, optometrists, lawyers, Metropolitan [Edison],

and Nebbia’s upstate New York grocery selling a quart

of milk are all in regulated businesses, providing argua-

bly essential goods and services “affected with a public

interest.” We do not believe that such a status converts

their every action, absent more, into that of the State.

This conclusion was even more emphatically expressed two

years later, in United States v. Orleans, 425 U.S. 807, 815-16

(1976):

Billions of dollars of federal money are spent each year

[on government contracts]. These contractors act for

and are paid by the United States. They are responsible

to the United States for compliance with the specifica-

tions of a contract or grant, but they are largely free to

select the means of its implementation. . . . Similarly,

by contract, the Government may fix the specific and

10

precise conditions to implement federal objectives. Al-

though such regulations are aimed at assuring compli-

ance with goals, the regulations do not convert the acts

of entrepreneurs ... into federal government acts.

Under these precedents, TRW cannot be held to be a

government actor based upon some vague and visceral

generalization about its purported role in “implementing a

government-mandated security program.” Petition at 10.

Instead, as this Court’s jurisprudence makes clear, TRW

cannot be held to be a government actor unless the specific

conduct complained of by the Petitioner here can be

ascribed to a rule of conduct imposed by the government. As

the court below properly concluded, the record is bereft of

evidence that the government was responsible for the partic-

ular conduct of which Petitioner complains, i.e., TRW’s

directive that Petitioner appear without counsel for an

interview and its decision to terminate him for refusing to

appear. In making these decisions, TRW acted as a private

employer, not the federal government.

The starting point of any state action analysis is the trilogy

of cases decided by this Court in 1982, in which this Court

comprehensively restated the principles governing this in-

quiry. In the first case, Lugar v. Edmondson Oil Co., 457

U.S. 922 (1982), this Court held that two distinct require-

ments had to be met before private conduct could be

ascribed to the state:

First, the deprivation must be caused by the exercise of

some right or privilege created by the State or by a rule

of conduct imposed by the State or by a person for

whom the State is responsible. ... Second, the party

charged with the deprivation must be a person who may

fairly be said to be a state actor. This may be because

he is a state official, because he has acted together with

or has obtained significant aid from state officials, or

Ne SE Te SE. Sa -e

11

because his conduct is otherwise chargeable to the

State.

Id. at 937 (emphasis added).

In the second case, Blum v. Yaretsky, 457 U.S. 991, 1004

(1982), the Court succinctly unified these requirements:

“{C]onstitutional standards [can be] invoked only where it

can be said that the State is responsible for the specific

conduct of which the plaintiff complains” (first emphasis

original). The Court explained that “[m]ere approval of or

acquiescence in” private conduct will not satisfy the require-

ment of state “responsibility”; to the contrary, the state

must have “exercised coercive power or ha[ve] provided

such significant encouragement, either overt or covert, that

the choice must in law be deemed to be that of the State.”

Id.

As the Court of Appeal here recognized, Blum is disposi-

tive of this case. In Blum, patients of government-funded

private nursing homes challenged decisions, made pursuant

to government cost-reduction regulations, to transfer them

to facilities offering lower levels of nursing care. The nursing

homes received more than 90% of their funding from the

state, and were heavily regulated. The regulations provided

detailed direction on the substantive criteria — set forth in a

governmental questionnaire — by which the physicians were

to make the transfer decisions, as well as the procedure to be

followed by the physicians. The state regularly inspected the

homes to ensure that the level of care selected was appropri-

ate, and retained the power to direct transfers whenever it

determined the level of care was too high. It even had the

power to fine or disqualify nursing homes that did not

implement the cost-control program properly. Finally, the

state implemented the decisions by reducing the level of

Medicaid payments made on behalf of transferred patients,

and thus benefitted from the decisions.

12

Despite the overwhelming state involvement in the deci-

sion-making scheme, this Court held that there was no state

action because the state was not “responsible” for the

specific transfer decisions at issue. Although the state ques-

tionnaires set forth the criteria for those decisions, “the

physicians, and not the forms, make the decision about

whether the patient’s care is medically necessary.” Id. at

1006-07. Similarly, although state officials reviewed the

assessment forms, they did not “approve or disapprove

decisions either to retain or discharge particular patients.”

Id. at 1010.

The final case in the trilogy is equally apposite. In

Rendell-Baker v. Kohn, 457 U.S. 830 (1982), defendant was

a state-funded private school that was required by state

regulations to maintain written job descriptions and person-

nel standards and procedures. As a condition of the school’s

receipt of funds, the state also had to approve all hiring

decisions. Plaintiff, a vocational counselor, alleged retalia-

tory discharge in violation of the Constitution. This Court

dismissed plaintiff's “public function” argument, reasoning

that:

The school, like.the nursing homes [in Blum], is not

fundamentally different from many private corporations

whose business depends primarily on contracts to build

roads, bridges, dams, ships, or submarines for the

government. Acts of such private contractors do not

become acts of the government by reason of their

significant or even total engagement in performing

public contracts.

Id. at 840-41 (emphasis added). The Court then rejected

the plaintiff's state action claim because the specific dis-

charge decision at issue was “not compelled or even influ-

enced by any state regulation.” Id. at 841-42 (emphasis

added).

« tops meet ae

13

Under these precedents, the indispensable requirement

for state action is government coercion or significant encour-

agement of the specific activity challenged. This Court has

adhered strictly to this guiding principle. See, e.g., San

Francisco Arts & Athletics, Inc. v. United States Olympic

Committee, 483 U.S. 522, 546 (1987) (the USOC was not

a government actor because, although it served a national

purpose, received its charter from Congress, was funded and

extensively regulated by Congress, and had received from

Congress the statutory right to sue to enforce its govern-

ment-granted monopoly over the word “Olympic,” the gov-

ernment did not influence the USOC’s specific decision to

sue to enjoin the use of the word “Olympic” by this

particular plaintiff) .°

“Applying these precedents here” (Pet. App. at A23), the

court below correctly held that the determinative inquiry

was whether the government “required or encouraged the

particular deprivation of which Petitioner complains” —

TRW’s decisions to interview Petitioner without counsel and

terminate him for not appearing. Jd. Because neither the

ISM nor the record supported the inference that the govern-

ment had even the slightest role in TRW’s conduct, the

court below correctly concluded that “even though TRW’s

‘The lower courts, too, have remained faithful to the precepts set forth

in the trilogy. See, e.g., McKeesport Hospital v. Accreditation Council for

Graduate Medical Education, 24 F.3d 519, 523 (3d Cir. 1994) (recog-

nizing that the principles identified in the “Supreme Court’s . . . trilogy”

must guide any analysis of state action issues); Kitchens v. Bowen, 825

F.2d 1337, 1340 (9th Cir. 1987), cert. denied, 485 U.S. 934 (1988)

(same). A particularly apt case is Pinhas v. Summit Health, Ltd., 894

F.2d 1024, 1034 (9th Cir. 1989) (en banc), cert. denied, 498 U.S. 893

(1990) (physician’s discipline did not constitute state action even where

the disciplinary decision was made pursuant to a state-mandated review

process, and the hospital was required ‘to report adverse determinations

to the state, because the state had not “exercised coercive power or

encouraged the [Petitioner’s] removal in any way”).

14

possession of classified information is subject to TRW’s

contractual relation with the federal government, TRW’s

conduct in this case was private, not specifically required or

encouraged by the government, and... not subject to the

[Constitution ].” Jd. at A25.

B. Contrary To Petitioner’s Assertion, This Court Has

Not Tacitly Renounced The Principles Set Forth In

The State Action Trilogy.

Petitioner contends that this Court has tacitly renounced

the principles set forth in its 1982 trilogy. Nothing could be

further from the truth. The purportedly “conflicting” deci-

sions cited by Petitioner faithfully adhere to the principles

set forth in the trilogy and are fully consistent with the

decision below.

(i) The Edmonson Decision: In Edmonson v. Leesville

Concrete Co., 500 U.S. 614, 111 S.Ct. 2077 (1991), this

Court held that, by exercising peremptory jury challenges in

a racially discriminatory manner, defendant violated the

equal protection rights of prospective jurors. Far from re-

jecting the trilogy, this Court in Edmonsor applied precisely

the same test first articulated in Lugar.

[F ]irst, whether the claimed constitutional deprivation

resulted from the exercise of a right or privilege having

its source in state authority . . . and second, whether the

private party charged with the deprivation could be

described in all fairness as a state actor.

Id. 111 S.Ct. at 2082-83 (expressly citing Lugar, 457 U.S.

at 937). Notably, this also was the very test the court below

applied in disposing of this case.

Moreover, Petitioner cannot meet either part of the

Lugar/ Edmonson inquiry. With respect to the first part, this

Court in Edmondson held that the use of peremptory

challenges was purely a creature of federal law. 111 S.Ct. at

15

2083. Here, the government neither compelled nor con-

ferred upon TRW the “right or privilege” to interview its

employees, much less to do so without counsel or terminate

them for insubordination.

With respect to the second part, this Court found state

action in Edmonson because the specific conduct engaged in

would not have been possible without the “overt, significant

participation of the government,” as evidenced by the statu-

tory framework governing jury selection, the involvement of

the district courts and the Administrative Office of the

United States Courts in creating procedures for such pur-

poses, and the “direct and indispensable” control of the trial

judge over such procedures. 111 S.Ct. at 2084-85.’ Here, as

the Court of Appeal correctly concluded, there was no

government involvement whatsoever in TRW’s conduct.

Conspicuously, not one single word of the Petition even

addresses this critical inquiry.®

"Indeed, it is this precise holding that this Court, and the lower courts,

have taken to be the ratio decidendi of Edmonson. See, e.g. J.E.B. v.

Alabama ex rel. T.B., US. ——, 114 S.Ct. 1419 (1994)

(Edmonson proscribes the state’s “sponsor[ship]” of or “participation

in” the perpetuation of invidious stereotypes) (id. at 1421, 1427);

McKeesport Hospital, 24 F.3d at 524 (Edmonson confirmed that the

“applicable standard” for state action depends upon whether the private

party received “ ‘overt, significant assistance’ ” from the state or “acted

... in concert with state officials”).

*Petitioner’s reliance on United States v. Davis, 482 F.2d 893 (9th Cir.

1973), is similarly misplaced. In Davis, the FAA issued directives

mandating personal security searches and specifying in detail who could

conduct the searches and how. Petitioner neglects, however, to cite the

subsequent cases refusing to extend Davis to constitutionalize conduct

going even one step further than specifically mandated by the FAA. See,

e.g., United States v. Ogden, 485 F.2d 536, 538 (9th Cir. 1973), cert.

denied, 416 U.S. 987 (1974) (baggage searches, although serving the

FAA’s anti-hijacking concerns, not state action because not specifically

“directed or authorized by any federal regulation”); United States v.

Oe ee ema e een aN ae nn oles ao Rae E TE. Se a eae ee ee

16

Instead of applying the principles reaffirmed in Edmon-

son, Petitioner invites this Court to focus exclusively upon

the statement in Edmonson that it is relevant to the state

action analysis to consider the extent to which the private

entity relies upon government assistance, whether it per-

forms a traditional public function, and whether the injury

caused is aggravated in a unique way by the incidents of

governmental authority. 111 S.Ct. at 2083.

These other factors do not affect the result here. For

example, the Court in Edmonson reasoned that the defen-

dant there had been delegated a function traditionally re-

served to the government, namely, determining

representation on a governmental body (the jury). Jd. at

2085. Petitioner simply echoes this by asserting that TRW

“assum[ed]...the traditional governmental functions of

national defense.” Petition at 17. Needless to say, there is

nothing in the record to suggest that TRW cither makes or

implements national defense policy. Further, the acts TRW

engaged in here — seeking to interview its employee re-

specting potential misconduct, and disciplining him for

noncooperation — are manifestly not the prerogatives of

government; they are part and parcel of running any private

business.’ Similarly, this Court in Edmonson indicated that

the incidents of government aggravated in a unique way the

injury suffered by the prospective jurors because “[f]ew

places are a more real expression of the constitutional

Gumerlock, 590 F.2d 794, 799 (9th Cir.), cert. denied sub nom., Fannon

v. United States, 441 U.S. 948 (1979) (same, regarding cargo searches).

*Petitioner’s attempt to divorce the “public function” inquiry from the

particular conduct he challenges renders his analysis meaningless. If

such abstract characterizations could serve as the touchstone for govern-

mental status, then every aspect of every defense contractor’s business

would be subject to the Constitution. Indeed, by parity of reasoning, any

private business affected with a public interest would be subject to the

Constitution. As noted earlier, this Court has emphatically rejected this

dangerously expansive proposition.

Biidiiisiiin ia sis 0

17

authority of the government than a courtroom, where the

law itself unfolds. ... Race discrimination within the court-

room raises serious questions as to the fairness of the

proceedings conducted there.” Jd. at 2087. By contrast, the

government played absolutely no role, not even a symbolic

or incidental one, in TRW’s conduct.

(ii) The West Decision: In West v. Atkins, 487 U.S. 42

(1988), this Court held that when the state contracts with a

physician to discharge the state’s affirmative constitutional

obligation to provide medical services to prison inmates, the

physician becomes a state actor. Jd. at 54-55. As the Court

explained, the state cannot evade its constitutional obliga-

tions simply by delegating them to private parties. West has

no bearing here because the government has no constitu-

tional obligation to interview employees of entities with

which it contracts, or to discipline such employees in their

employment.

Even assuming that the government had some such obli-

gation, the record precludes any inference that it delegated

this duty to TRW. As Petitioner expressly conceded in the

court below, the government does not delegate to defense

contractors its investigative function (or, indeed, its evalua-

tive or adjudicatory functions), but jealously retains this

function for itself. Return to Petition for Extraordinary Writ,

at 11 n.6.'° The ISM is not to the contrary; as already noted,

it imposes upon contractors a general duty of inquiry, but no

“The regulations specify that DIS — not the contractor — is respon-

sible for conducting security investigations (32 C.F.R. § 377.4), making

determinations regarding the granting or revoking of seeurity clearances,

and conducting certain adjudicatory hearings (32 C.F.R. § 155.4-155.6

and App. A to Section 155). After receiving a contractor’s report, DIS

evaluates the information, conducts its. own administrative investigation,

if necessary, and determines whether an employee should retain a

clearance. Rec. at 711 (emphasis added).

18

obligation to interview employees or deny counsel at such

interviews."

(iii) The Becker Decision: In Becker v. Philco Corp., 372

F.2d 771 (4th Cir.), cert. denied, 389 U.S. 979 (1967),

which predated the trilogy, the Fourth Circuit held that

because a defense contractor had a mandatory duty to share

confidences with the government pursuant to the reporting

requirements of an earlier version of the ISM, it partook of

the government’s immunity to liability for defamation in

connection with such reports. Jd. at 774. Whatever the

merits of that decision, the Fourth Circuit did not even

discuss, much less decide, the entirely different question

whether the contractor was subject to constitutional con-

straints under the “state action” doctrine. Moreover, even if

TRW theoretically could be a government actor for the

limited purpose of making a compulsory report, that conclu-

sion has no bearing here. The conduct challenged here is not

the making of the report, but rather TRW’s insistence upon

interviewing Petitioner without counsel.'? As already noted,

the ISM does not even mention the topic of employee

interviews.

"Petitioner contends that this Court in West “limited” Blum and

Rendell-Baker because the exercise of “professional judgment” by the

physician in West did not preclude a finding of state action. As the Court

in West explained, these cases simply were inapplicable because the

physician there had been employed specifically “to fulfill the State’s

constitutional obligations” to provide that professional judgment. 487

U.S. at 52 n.10.

'2The cases of Solomon, supra, and United States v. Stevens, 601 F.2d

1075 (9th Cir.), cert. denied, 444 U.S. 917 (1979), are apposite here.

Both held that the mere existence of statutory reporting obligations did

not transform private entities — the New York Stock Exchange and a

bank, respectively — into government actors when they undertook inter-

nal investigations to obtain the requisite information, even if such

investigations entailed questioning under threat of termination.

19

In summary, the conclusion of the court below that TRW

was not a government actor in this case rested on a straight-

forward application of principles articulated by this Court in

cases spanning two decades. This Court should not grant

certiorari simply to reconfirm these well-accepted principles.

fil. CERTIORARI SHOULD BE DENIED BECAUSE

PETITIONER ULTIMATELY SEEKS REVIEW

OF THE LOWER COURT’S CONCLUSIONS OF

FACT.

Although Petitioner purports to raise a constitutional

issue of some moment, he ultimately does nothing more

than dispute the lower court’s factual conclusion that there

was a complete “absence of evidence that the government

required or encouraged the particular deprivation of which

[ Petitioner] complains.” Pet. App. at A23. :

Petitioner’s factual argument is easily met. One need only

compare the Court of Appeal’s detailed, six-page analysis of

the obligations contractually imposed on TRW by the ISM

(id. at A6-A9, A23-A24) against Petitioner’s conclusory

assertion — unsupported by any textual reference — that

TRW engaged in a “government-mandated security interro-

gation.” Petition at 17. Such a comparison reveals that

Petitioner’s version of the facts is inaccurate. But more

important, purely factual inquiries such as this in any event

do not merit this Court’s attention.

IV. CERTIORARI SHOULD BE DENIED BECAUSE

THE ISSUE OF A PURPORTED RIGHT TO AN

ADVISORY STATEMENT WAS NEITHER

PRESENTED TO NOR DECIDED BY THE

COURT BELOW. :

Petitioner’s wrongful discharge case is premised on the

erroneous assumption that he had a constitutional right to

refuse to attend the TRW interview without counsel. Peti-

tion at 9. Petitioner has been in constant search of a credible

20

constitutional theory to support this contention. His quest

has led him now to seek certiorari on an entirely different

basis than any presented to or considered by the court

below. Certiorari should be denied for this reason alone.

In the trial court, Petitioner argued that his purported

right to counsel arose under Miranda v. Arizona, 384 U.S.

436 (1966), because, he contended, the TRW interview

would have been custodial. This was the sole basis for the

trial court’s Statement of Decision regarding a right to

counsel. Pet. App. at A41-A46."? The Court of Appeal

unanimously rejected this argument because Petitioner was

not—and, had he appeared, would not have

been — subjected to a custodial interrogation, the quintes-

sential prerequisite to a right to counsel under the Fifth

Amendment. Pet. App. at A26-A32. Petitioner has totally

abandoned his Miranda argument here.

Petitioner also presented a new argument to the Court of

Appeal: that his discharge impermissibly burdened his privi-

lege against self-incrimination because “ ‘the Government

has no power to punish an individual for refusing to volunta-

rily submit to interrogation.’ ” Jd. at A32. The court unani-

mously rejected this argument as “misconceived” because

the so-called “penalty cases” invoked by Petitioner hold

only that “the government may not, upon threat of termina-

tion, require a public employee to speak and to waive...

immunity from use in a subsequent criminal prosecution

which would ordinarily attach to such a compelled admis-

sion.” Jd. at A33 (emphasis original). Because it was

undisputed that TRW did not require Petitioner to waive

immunity, these cases properly were held to be inapplicable

here. Jd. at A34.

‘>The Statement of Decision was prepared by Petitioner’s counsel, yet

contains no findings regarding any assertion of or burden on the privilege

against self-incrimination.

21

In a desperate attempt to create an issue worthy of review,

Petitioner now claims that his discharge for refusing to be

interviewed without counsel impermissibly burdened his

privilege against self-incrimination because TRW failed to

advise him that his answers would not be used Criminally

against him. This new argument was not raised before or

considered by either the trial court or the Court of Appeal.’

Accordingly, nothing in the lower court’s opinion addresses,

much less decides, whether Petitioner would have been

entitled to aa advisory statement had he appeared for the

interview.

This Court generally refrains from addressing issues not

raised below. See, e.g., Browning-Ferris Industries of Ver-

mont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 277 n.23

(1989); EEOC v. Federal Labor Relations Authority, 476

U.S. 19, 24 (1986). This Court should apply this rule here

to deny certiorari, because the Court lacks the benefit of any

findings or analysis by the courts below respecting the

purported constitutional issue raised by Petitioner.

Vv. CERTIORARI SHOULD BE DENIED BECAUSE

THIS COURT WOULD HAVE TO HYPOTHESIZE

THE EXISTENCE OF A SERIES OF FACTS TO

REACH THE ABSTRACT CONSTITUTIONAL

QUESTION POSITED BY PETITIONER.

There is a second reason why this Court should deny

certiorari on the question whether an employer must advise

an employee who invokes the privilege against self-incrimi-

nation that his answers cannot be used against him in a

‘Petitioner first mentioned this purported issue in his Petition for

Review to the California Supreme Court, which was summarily denied.

As such, the issue was improperly presented under state procedural rules

as well. See Cal. Rule of Court 29(b) (as a matter of policy, California

Supreme Court normally will not consider “any issue that could have

been but was not timely raised in the briefs filed in the Court of

Appeal’’).

22

subsequent criminal proceeding: the facts of this case simply

do not raise that issue.

First, Petitioner never asserted the privilege against self-

incrimination, but instead, the independent purported right

to presence of counsel at the interview. See Part VI, below.

Second, it is undisputed that Petitioner never appeared as

directed for questioning, never was questioned, never in-

voked the privilege, and thus never was compelled to answer

questions after invoking the privilege. Thus, in order to

reach the purported constitutional issue here, this Court

must assume — contrary to the evidence — a series of hypo-

thetical events: that (1) Petitioner would have appeared for

an interview; (2) the questions would have been potentially

incriminating; (3) he would have invoked the privilege in

response to such questions; (4) TRW would have required

him to answer; (5) TRW would not have given an advisory

statement; and (6) TRW would have discharged him for

refusing to answer. As a matter of undisputed fact, not one

of these events occurred because Petitioner refused to appear

for questioning in the first place.

For sound prudential reasons, this Court typically declines

to resolve constitutional issues based solely on hypothetical

facts. See, e.g., Communist Party of United States v. Subver-

sive Activities Control Bd., 367 U.S. 1, 71-72 (1961) (“No

rule of practice of this Court is better settled than ‘never to

anticipate a question of constitutional law in advance of

deciding it.’... Courts can most wisely determine issues

precisely defined by the confining circumstances of particu-

lar situations”). It should decline to do so here, because any

ruling on this issue would be entirely advisory in nature.'°

'SNotably, in every “penalty case” cited by Petitioner in which a court

stated that some advisory statement was required, the individual actually

appeared for questioning and invoked the privilege against self-incrimi-

nation. Petitioner did neither. As Petitioner's own attorneys candidly

admitted: “We can only speculate what advice TRW would have given

a3

VI. CERTIORARI SHOULD BE DENIED BECAUSE

PETITIONER INVOKED ONLY A RIGHT TO

COUNSEL, NOT THE SEPARATE PRIVILEGE

AGAINST SELF-INCRIMINATION.

A. A Demand For Counsel At A Noncustodial Interview

Does Not Invoke The Privilege Against Self-

Incrimination.

The Fifth Amendment privilege against self-incrimina-

tion, except for limited exceptions not applicable here, is not

self-executing. Minnesota v. Murphy, 465 U.S. 420, 434-36

(1984). Thus, an individual wishing to avail himself of the

privilege must actually assert it. [bid.

Petitioner never invoked the privilege against self-incrimi-

nation; he refused to appear for the interview based solely on

a purported right to have his counsel present.'® Indeed, far

from asserting a right to remain silent, Petitioner admitted

he would be “happy” to answer questions if his counsel were

present at the meeting. Rec. at 1202.!’ Thus, Petitioner is

forced now to contend that his demand for counsel somehow

him.” Petition For Review to California Supreme Court at 25 n.8

(emphasis added).

“In his second amended complaint, Petitioner asserted that TRW

violated public policy by terminating him for his “insistence upon having

his attorney with him at any TRW security investigations.” Rec. at 661

(emphasis added). He did not allege that he was discharged for

asserting any privilege against self-incrimination.

‘Indeed, Petitioner demanded counsel due to his deteriorating rela-

tionship with his employer, not any purported concern about incrimina-

tion. Thus, he admitted that he demanded that “all communications” be

through his retained attorney even prior to learning of any potential

security issue, i.e., before any conceivable concern of incrimination. Rec.

at 1149-50. In fact, he testified that he would not discuss any subject

with TRW or even attend a New Year’s Eve dinner with TRW’s

President without his lawyer. Jd. at 1187. Moreover, he voluntarily met

with a government agent to discuss the exact same issues without his

attorney and without invoking the privilege. Jd. at 1206-14.

24

sufficed to invoke the Fifth Amendment privilege against

self-incrimination. He fails to cite any authority for this leap

of logic because it is not the law. A request for counsel,

absent a custodial interrogation, is insufficient to invoke the

Fifth Amendment privilege against self-incrimination. See,

e.g., Murphy, 465 U.S. at 424 n.3 (declining to address

whether defendant’s statement that “he felt like calling a

lawyer” was an attempt to invoke the privilege because he

had no right to an attorney during noncustodial interroga-

tion); United States v. Rea, 678 F.2d 382, 390 (2nd Cir.

1982) (despite request for counsel, continued questioning

by probation officers did not implicate parolee’s Fifth or

Sixth Amendment rights).

Here, Petitioner no longer contests the lower court’s

holding that the contemplated interview was noncustodial.

See Pet. App. at A26-A32. Thus, his insistence upon coun-

sel was not an invocation of the privilege against self-

incrimination. Accordingly, this case raises no issue regard-

ing a purported burden on that privilege.

B. Petitioner Seeks To Expand The Right To Counsel

To Noncustodial Interviews, Contrary To Well-Es-

tablished Precedent Of This Court.

Despite his attempt to characterize this as a case raising

the question whether he was entitled to some type of

advisory statement, Petitioner ultimately asserts, as he must

to prevail, that he had a right to insist on the presence of his

counsel at the contemplated interview “to help him safe-

guard his privilege against self-incrimination and exercise it

intelligently.” Petition at 26. But even if Petitioner properly

had invoked the privilege (which he did not), he still had no

constitutional right to insist upon counsel at the contem-

plated interview.

As discussed above, the right to counsel and the privilege

against self-incrimination are independent nights. Just as a

25

request for counsel does not itself invoke the privilege, a

proper invocation of the privilege does not create a right to

counsel as a procedural safeguard to protect the privilege,

except in a custodial interrogation. See, e.g., Miranda vy.

Arizona, 384 U.S. 436, 469-470 (1966); California v.

Beheler, 463 U.S. 1121 (1983). As this Court stated in

Edwards v. Arizona, 451 U.S. 477, 485-86 (1981), “[t]he

Fifth Amendment right identified in Miranda is the right to

have counsel present at any custodial interrogation. Absent

such interrogation, there would have been no infringement

of the right... .”

Accordingly, even allegedly coercive or intimidating ques-

tioning occurring in a noncustodial setting does not give rise

to a Fifth Amendment right to counsel. See, e.g, Minnesota

v. Murphy, 465 U.S. 420, 424 n.6 (1984) (parolee under

statutory duty to appear and answer probation officer’s

questions has “no federal right to have an attorney pre-

sent”); Beckwith v. United States, 425 U.S. 341 (1976)

(individual not entitled to Miranda warning during accusa-

tory but noncustodial questioning); Baxter v. Palmigiano,

425 U.S. 308 (1976) (inmate retains right to remain silent

but has no right to counsel during prison disciplinary hear-

ing, despite potential criminal liability).

In sum, Petitioner’s claim of entitlement to an advisory

statement is a poorly disguised end-run around this Court’s

precedents limiting the Fifth Amendment right to counsel to

custodial interrogations. Accepting Petitioner’s reasoning

would create an unprecedented expansion of the right to

counsel to all types of noncustodial administrative

investigations. '®

‘*Petitioner appears to recognize the absurd implications of his own

"assertion when he asserts: “We do not suggest every interview of an

employee by a public employer concerning any potential infraction

triggers a full panoply of constitutional rights.” But he offers no

26

Vil. CERTIORARI SHOULD BE DENIED BECAUSE

EVEN THE STATE CAN PUNISH ONE WHO

ATTEMPTS TO CIRCUMVENT THE INVESTI-

GATIVE PROCESS BY REFUSING TO APPEAR

OR ASSERTING A BLANKET INVOCATION OF

THE PRIVILEGE.

Even if Petitioner’s demand for counsel somehow impli-

cated the privilege against self-incrimination, this case still

raises no issue of an impermissible burden on the privilege

because Petitioner did not appear for questioning, and did

not assert the privilege in response to specific questions.

Under this Court’s precedents, Petitioner cannot rely on the

privilege to preempt the entire investigative process.

A. This Court Has Held That The State Can Punish An

Individual For Refusing To Appear Without Imper-

missibly Burdening The Privilege Against Self-

Incrimination.

In Minnesota v. Murphy, 465 U.S. 420 (1984) — which

Petitioner fails even to cite— a parolee contended that

Minnesota law, which required him to appear for a parole

interview and answer questions truthfully under penalty of

parole revocation, improperly penalized his privilege against

self-incrimination. This Court flatly rejected this argument,

holding that the statute penalized the parolee’s failure to

appear for questioning, not his invocation of the privilege in

response to specific questions.'® In drawing this distinction,

the Court analogized the parolee’s statutory obligation to

standards for identifying when and under what circumstances public

employees could refuse to appear for questioning without counsel.

'*This Court specifically distinguished Petitioner's “penalty cases” on

the ground that, in those cases, the employee not only was compelled to

appear and testify, but at the same time was required to forego the

privilege against self-incrimination. 465 U.S. at 434. Here, it is undis-

puted that TRW never attempted to force Petitioner to forego the

privilege.

27

appear and answer questions to that of a person subpoenaed

by a grand jury, noting that although the latter retains the

right to invoke the privilege against self-incrimination in

response to specific questions, he or she still has an obliga-

tion, punishable by contempt, to appear before the grand

jury. Accordingly, Petitioner’s contention that he could

preemptively assert the privilege, and thereby avoid appear-

ing for questioning, is precluded by Murphy.”

Nor do any of the “penalty cases” cited by Petitioner

permit an individual to avoid appearing for questioning

merely by asserting the privilege. Even in the cases in which

the lower courts have opined that some advisory statement

was appropriate, the employees, unlike Petitioner, appeared

for questioning as directed and refused to answer questions

based on the privilege against self-incrimination. See cases

cited in Petition at pages 21 to 22. None of those cases

appliés here.”!

Hence, there is no conflict between the Federal Courts of

Appeals on the only question raised here, i.e., whether a

governmental employer may discharge an employee who

refuses to appear for questioning as directed: it may do so.

See Gulden v. McCorkle, 680 F.2d 1070, 1076 (Sth Cir.

1982), cert. denied, 459 U.S. 1206 (1983) (“We... decline

Indeed, Petitioner’s contention requires an even greater leap of logic,

since he claims he could preempt his appearance at the interview by

insisting on the right to presence of counsel. Under that reasoning, a

subpoenaed grand jury witness could refuse to appear by insisting upon

presence of his counsel during questioning, despite the fact that he has

no right to counsel before the grand jury. See, e.g., United States v.

Mandujano, 425 U.S. 564, 578-81 (1976).

*'Similarly, Petitioner’s citation to Lefkowitz v. Cunningham, 431

U.S. 801 (1977), and Lefkowitz v. Turley, 414 U.S. 70 (1973), does not

aid him. Petition at 22-23. In both cases the individuals appeared for

questioning and were required to waive their immunity rights under

threat of sanction.

28

to promulgate the rule... that would allow an employee,

before he or she is required to respond to any questions, to

circumvent an investigation proceeding by claiming genera-

lized Fifth Amendment concerns prior to the time those

concerns have developed in a particularized context”). See

also Asherman v. Meachum, 957 F.2d 978, 982-83 (2d Cir.

1992) (en banc) (revocation of home release status for

refusal to appear for interview does not violate privilege

because adverse action was based on prisoner’s attempt to

foreclose any questioning); Grabinger v. Conlisk, 320

F.Supp. 1213, 1217-18 (1970), affd, 455 F.2d 490 (Sth Cir.

1972) (disciplinary suspension of police officers for refusing

to take polygraph test without counsel did not violate Fifth

Amendment).

Not only was TRW’s sanction far less coercive than

parole revocation in Murphy, but there is no evidence that,

had Petitioner appeared and invoked his privilege against

self-incrimination in response to specific questions, he would

have been penalized in any way. Indeed, the uncontradicted

evidence before the trial court established that TRW secur-

ity does not compel employees to answer questions. Rec. at

1408, 1895.” Accordingly, Petitioner’s termination for re-

fusing to comply with its directive that he appear for an

interview without his attorney neither impermissibly bur-

These facts dispose of Petitioner’s unsupported assertion that he was

faced with an “intolerable choice between submitting to TRW’s interro-

gation and risking his liberty . . . and refusing to submit and forfeiting his

job....” Petition at 26. Petitioner had a viable third option — to

consult with his attorney (which he did), appear as directed, and assert

his privilege against self-incrimination to whatever questions, if any, he

believed might incriminate him. Had he done so, both TRW’s interest in

having its employees follow its lawful instruction to appear and Peti-

tioner’s purported interest against self-incrimination could have been

met. Moreover, this Court would then have a factual record on which to

determine whether TRW would have penalized Petitioner’s assertion of

the privilege rather than his failure to appear.

——aEeEeEeEeEeEeE—EeEEEEEEEEEEEE———————

29

dened his privilege against self-incrimination, nor raised any

issue as to whether he would have been entitled to an

advisory statement had he appeared as directed and asserted

the privilege against self-incrimination.

B. Even If Petitioner Had Invoked The Privilege, Any

Such “Blanket Invocation” Of The Privilege Is Le-

gally Ineffective.

Reflecting the rationale and result in Murphy, the Federal

Courts of Appeals consistently have held that, absent a

custodial interrogation, one seeking to invoke the privilege

may not simply assert a “blanket privilege” to avoid answer-

ing any questions or to excuse a failure to appear. Rather,

one must assert the privilege in response to specific ques-

tions, so that a reviewing court can test the validity of the

assertion on the basis of a factual record showing whether

the questions asked tended to incriminate. See, e.g, Anglade

v. Sprague, 822 F.2d 1035, 1037 (11th Cir. 1987) (rejecting

defendants’ attempt to justify failure to attend trial as an

improper blanket assertion of the privilege); United States v.

Carroll, 567 F.2d 955, 957 (10th Cir. 1977) (circuit courts

have held with “great uniformity” that a blanket refusal to

answer questions does not raise constitutional concerns);

United States v. Malnik, 489 F.2d 682, 685 (5th Cir.), cert.

denied, 419 U.S. 826 (1974) (individual must appear for

questioning and specifically assert privilege as to particular

questions; court will not speculate about what questions

might have been asked). Thus, Petitioner’s refusal to attend

the interview, like a blanket assertion of the privilege, is

legally ineffective to invoke the privilege or to excuse his

failure to appear for questioning. Moreover, it deprives this

Court of any factual record upon which to analyze the

application of the privilege or to decide Petitioner’s pur-

ported constitutional issue.

30

VII. CERTIORARI SHOULD BE DENIED IF THIS

COURT CONCLUDES THAT EITHER THE

STATE ACTION OR THE FIFTH AMEND-

MENT ISSUE IS NOT WORTHY OF REVIEW.

The court below found that TRW was not a state actor,

and that, even if it were, Petitioner had no right to counsel at

the contemplated interview. Thus, in order to secure mean-

ingful relief from this Court, Petitioner must show that both

holdings below are worthy of this Court’s review. Accord-

ingly, if this Court finds that only one of these two issues

merits review, then it nonetheless should deny certiorari

because its review necessarily will prove irrelevant to the

ultimate outcome here.

CONCLUSION

For each of the foregoing reasons, Respondent respect-

fully prays that the Petition for a Writ of Certiorari be

denied.

Dated: January 16, 1995

Respectfully submitted,

Terry E. Sanchez

(Counsel of Record)

Marc T.G. Dworsky

MUNGER, TOLLES &

OLSON

355 South Grand Avenue

Suite 3500

Los Angeles, California

90071-1560

Telephone: (213) 683-9100

FAX: (213) 687-3702

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