LACHANCE v. ERICKSON

Transcript: 

Argument of Seth P. Waxman

Chief Justice Rehnquist: We'll hear argument next in Number 96-1395, Janice LaChance v. Lester Erickson.

General Waxman.

Mr. Waxman: Mr. Chief Justice, and may it please the Court:

Each of the six Federal employees in this case engaged in sanctionable employment-related misconduct and then knowingly and intentionally falsely denied the misconduct when questioned by agency investigators.

The court below held, however, that as a matter of constitutional due process the Government, as employer, may not charge these employees with both misconduct and lying about the misconduct.

Indeed, the court went beyond that to hold that an employee's deliberate falsification may not even be considered in determining the penalty for the separate underlying misconduct.

There is nothing whatsoever in the Due Process Clause or anywhere else in the Constitution, for that matter, that prevents a Government agency from sanctioning an employee who deliberately lies in response to questions about employment misconduct, whether or not the employee is also sanctioned for the misconduct itself.

When the Government acts as an employer, it has the right to demand that its employees respond honestly to work-related questions and to sanction them if they do not, just as all other employers do.

Indeed, the Government has more reason to demand honesty from its employees, as they employ... as they enjoy a public trust.

As this Court held in Lefkowitz v. Cunningham, the Government has a compelling interest in honest civil service.

The holding of the Federal Circuit in this case imposes profound anomalies and perverse incentives.

Wrongdoers who tell the truth are required under this holding to be punished just as severely as wrongdoers who then knowingly and intentionally lie about their misconduct when questioned by an investigator or a tribunal.

An employee who is questioned about wrongdoing can be punished for lying about it if he didn't do any wrong, but if he did do wrong and lies about it, he can't be separately punished for lying about it.

Under the Federal Circuit rule, a rational employee questioned about wrongdoing will always lie, since it's cost-free and perhaps he will fool or dissuade the agency.

He would be irrational to 'fess up and, indeed, I think it's fair to say that the consequences, that the rationale of the Federal Circuit's decision in this case goes beyond just what the individual agency can do and presumably would also prevent the Government in its sovereign capacity from making the false statements 1001 or, if their statements were under oath, for perjury.

So we submit that the decision of the Federal Circuit in this case, which doesn't follow any decisions by this Court or any decisions by any other Federal court, is simply wrong as a matter of constitutional law.

Unknown Speaker: General Waxman, just for purposes of discussion and not to indicate my view on what the Court's likely to do in the preceding case, but let's assume we recognize an exculpatory no doctrine, does that have any spillover effect in this situation?

Mr. Waxman: Boy, the only spillover effect it could have, Justice O'Connor, would be if you found an exculpatory no doctrine required as a matter of constitutional law, because the argument in favor of the exculpatory no doctrine in every court that has adopted some form of it has done so as a matter of statutory construction, trying to define what Congress could have intended.

There's no statute at issue in this case that that could be read into.

Unknown Speaker: I guess as a practical matter the consequences of lying about the situation, if you're correct in this case, are often more severe than the underlying malfeasance.

Mr. Waxman: It may--

Unknown Speaker: I would assume that could often be the case.

Mr. Waxman: --That could often be the case, and--

Unknown Speaker: I suppose the moral of that is don't lie.

Mr. Waxman: --That's the moral that we hope people will derive from the long line of cases in which this Court has held that even where there are important constitutional guarantees at issue, for example, in... under the self-incrimination clause, there is never a license to lie.

Here, of course, the self-incrimination clause is not even in play.

Unknown Speaker: Is there any concern about the conduct on the part of the agent, because most of these interviews are on a one-to-one basis, so is that perhaps what's reflected in this, that if you had a written record or... and the person, the employee when confronted lies, that's one thing, but if it's just an oral translation, how can you be sure that the one who's doing the interview isn't dissembling?

Mr. Waxman: Well, a couple of answers.

First of all, in a number of the cases that are collected in this... before this Court, the false statements were written.

That is, the employee was given a list of questions, or a series of questions and provided written answers.

In other instances, the employees either repeated or made their lies after they were put under oath, so you can't characterize the Federal Circuit's decision in this case as somehow limited to an informal oral question by an investigator.

But even if you could, that might go to the question of whether the agency could establish by a preponderance of the evidence that the individual employee had knowingly and with intent to deceive given a false statement.

That is, it may make it more difficult for the agency to establish that the misconduct had occurred, but as a constitutional matter, I wouldn't think that any a priori rule would be appropriate.

Unknown Speaker: Was the... did the Federal Circuit in this case rest its holding on any statutory ground, or was it a purely constitutional holding?

Mr. Waxman: It is a purely constitutional holding.

The only statute that's really... it's not even at issue in this case.

I don't even think that the Federal Circuit cited the statute, although I may be mistaken... is 5 U.S.C. section 7513, which provides that an agency may take action against an employee for misconduct

"only for such cause as will promote the efficiency of the service. "

And one of the things that the agency has to establish by a preponderance of the evidence is not only, of course, that the misconduct occurred, but that there is a nexus between the sanction that the agency has imposed and

"the promotion of the efficiency of this... of the service. "

That's required both in the statute and by a decision of law.

Unknown Speaker: As I understand this panel of the Federal Circuit, they were following a precedent already set, and all these MSPB cases nowadays do go to that one circuit.

Was there any procedure that might have been used to get the court to sit en banc and perhaps reconsider the precedent that was relied on in this case?

Mr. Waxman: I... sure.

We can ask that... the Federal Circuit to reconsider any panel decision en banc.

The earlier precedent that you're referring to, a case called Grubka--

Unknown Speaker: Yes.

Mr. Waxman: --I must say that although several panels of the MSPB itself in several instances in these cases felt that the result that was ultimately reached by the Federal Circuit was dictated by Grubka, but there are other... there were other MSPB decisions that basically distinguish Grubka.

I'm not certain, but I believe that we did ask the Federal Circuit at least in this case to reconsider this panel decision en banc.

I don't know whether we did in Grubka or not.

Frankly, I think it's reading a lot into Grubka to conclude that Grubka dictates the result that was reached by the board and the Federal Circuit in this case.

That was a highly unusual case which is and was distinguished by the MSPB subsequently on what I think are reasonable grounds.

Unknown Speaker: There was one curiosity in the Federal Circuit's opinion.

That is, they seemed to draw a line between... they said if it's at the investigative stage then the employee could be punished.

Was the--

Mr. Waxman: They did say that, but it's a little bit curious because all six of the employees in this case were alleged and proven to have made... to have lied during the investigative stage.

Now, some of them also lied during the "administrative stage", but one of the curious things about the Federal Circuit's decision is that in dicta it does say, well, of course due process wouldn't in any way protect lying at the investigative stage, but that's exactly what happened in each one of these cases.

If there are no further questions, I'd like to reserve 10 minutes for rebuttal, if I may.

Unknown Speaker: --Very well, General Waxman.

Mr. Marth, we'll hear from you.

Argument of Paul E. Marth

Mr. Marth: Thank you, Mr. Chief Justice, and may it please the Court:

If the Court accepts the Government position in this case that the Federal Circuit created a broad constitutional right to lie, then the respondents lose, because there is no such right, this Court has adamantly over the years asserted that there is no such right, and the respondents are not advocating that right in this case.

If, on the other hand, this Court finds that the Federal Circuit narrowly tailored a right to protect the employee's meaningful right to respond to the charges, then the respondents should prevail.

Unknown Speaker: Did you tell us that the question presented was not presented in your opposition to the petition, because the question presented surely says what you say is not at issue here, whether the Due Process Clause precludes a Federal... the Due Process Clause precludes a Federal agency from sanctioning an employee for making false statements to the agency regarding allegations that the employee had engaged in employment-related conduct.

I mean, that's what I thought we were here to talk about, and you're saying it is not.

Mr. Marth: No, Your Honor, I'm not saying that.

I'm saying that--

Unknown Speaker: Oh.

I thought that's what you said.

Mr. Marth: --that the Government in its brief and in its argument has characterized this as a broad constitutional right to lie, whereas it's the respondents' position that the Federal Circuit said, in a very narrowly tailored situation, to protect an employee's meaningful right to respond, an employee can deny misconduct and put the Government to its proof.

Unknown Speaker: Okay.

I see.

You're--

--the Constitution required that.

Mr. Marth: Your Honor, I disagree with General Waxman with regard to that issue.

The court of appeals relied on and quoted 5 U.S. Code 7513(b), which is the provision which gives... and I believe that's on page 11a of the appendix... which gives the employees certain rights when charges are brought against them, and that includes the right to counsel, the right to a detailed statement of the charges, a right to have a period of time of a minimum of 7 days to respond to those--

Unknown Speaker: And was that denied to these respondents?

Mr. Marth: --That was not denied, but what the court of appeals was saying, Your Honor, was that the meaningful right to respond and the meaningful right to have those rights was denied because early on before those rights were ever given, they were... in effect could be... if an employee was forced to respond affirmatively to the Government charges of misconduct, that that subsequent meaningful right was denied.

Unknown Speaker: Well, if it was simply an interpretation of the statute, why did the court of appeals refer to the Due Process Clause?

Mr. Marth: Well, the Due Process Clause comes in because the court of appeals found that there was a risk of erroneous deprivation in this case of those subsequent rights if an employee was forced to respond without a... an opportunity to deny the misconduct at the early stage.

Unknown Speaker: Let me ask my question again, then.

I thought I had an answer, but then... then you go back and said the same thing again.

Do you agree that the question presented here is whether the Due Process Clause requires the outcome?

Mr. Marth: Certainly, but the Due Process Clause, Your Honor, is based on property rights, and the property rights come from the statute.

Unknown Speaker: Well... okay.

And what in your opinion, Mr. Marth, is the case from this Court that most closely supports the result, the constitutional result reached by the court of appeals here?

Mr. Marth: Well, Your Honor, this Court has never, to my knowledge, dealt with this issue in a Federal employment context, where they have looked at the issues in the context of Federal employment.

I'm not aware of any case where this precise issue has certainly come before the Court in the past.

Unknown Speaker: Well, even if the precise issue hasn't, what is the constitutional decision from this Court that most closely supports your position?

Mr. Marth: Well, in Garrity v. State of New Jersey this Court said that officers who are given the choice of either answering questions or losing their jobs had their Fourteenth Amendment rights violated, and the statements they gave were not voluntary and could not be used against them.

That's probably the closest case, although certainly that is--

Unknown Speaker: There's no question of using the statements here against these people in some other proceeding, is there?

Mr. Marth: --You mean, whether or not these statements could be used in another proceeding?

Unknown Speaker: Yes.

Mr. Marth: Your Honor, I would... or, Chief Justice, I would say that there is no prohibition against using those statements in another context, but--

Unknown Speaker: The Government isn't trying to use them... the Government isn't trying to obtain a criminal conviction by using these statements in some sort of a criminal proceeding, is it?

The statements were just used in the proceeding in which they were given.

Mr. Marth: --That's correct, Your Honor, but the employees certainly did not know that, and there are several employees in this case, Barrett and Roberts, for example, who could have been charged with taking Government property, misappropriation of Government property, Ms. Kye in this case, who could have been charged with some kind of credit card fraud or abuse, and these employees, when they're brought into the investigation stage, are not told by the Government whether or not criminal consequences are contemplated.

Unknown Speaker: But no criminal consequences resulted in these cases.

Mr. Marth: That's correct, Your Honor.

Unknown Speaker: Now--

--Mr. Marth, you're drawing a large distinction between the public and private sector, and as I was reading your arguments I was thinking, in the case that we just heard, it's something that can only be between a Government and its citizens, but here we have an employment setting.

Employees lie to private employers like they do to public employers, so it seems to me you're extracting from due process a right for a public employee that surely does not exist in a private employer.

If that employer is lied to he can say, I don't want dissembling employees on my staff, goodbye.

Mr. Marth: Well, Justice Ginsburg, you've pointed out a real distinction between the Federal and the private sector, and that is that in the Federal sector an employee has absolutely no right to refuse to answer.

In the private sector there's no compulsion upon an employee to have to answer the question, but the Federal Circuit and the Merit Systems Protection Board have held that in any type of investigation an employee does not have a right to refuse to cooperate, so--

Unknown Speaker: Oh, but that simply means that if the employee refuses there will be consequences for refusal.

In each instance, they're... it seems to me, they're in the same position, aren't they--

Mr. Marth: --That's correct, Your Honor--

Unknown Speaker: --public and private?

Mr. Marth: --Your Honor, and even this case, Ms. Kye, one of the charges against her was that supposedly she failed to cooperate in the investigation, so you're correct that an employee is put to a dilemma.

Unknown Speaker: And that's a separate charge from--

Mr. Marth: That's a separate charge.

Unknown Speaker: --the charge that she in fact lied.

Mr. Marth: That's separate from that charge, yes, Your Honor.

Unknown Speaker: That's right, yes.

Now, the Federal Circuit seemed to try to draw some line between the types of statements that it's doctrine would apply to.

Mr. Marth: That's correct, Justice O'Connor.

They made it very--

Unknown Speaker: It's a line I don't understand, but is it one you espouse?

Mr. Marth: --It is one we espouse, and the Merit Systems Protection Board has had no difficulty applying that line, and we contend that that line is no more difficult--

Unknown Speaker: What is the line?

Mr. Marth: --The line is that... the difference between denying the charges, a simple denial of the charges versus telling false tales or creating a story to cover yourself.

Unknown Speaker: Well, in the case of the employee, Ms. Kye, she asserted that she had lost or torn up her Government credit cards, and yet that is not treated as a false statement.

How do you draw the line there?

Mr. Marth: Your Honor, basically the elements of what the Government had to prove in her case was that she had misused her credit card.

The denials in effect were, no I did not misuse my credit card, so that's where the court of appeals came down.

They said that when you look at the material facts that are elements of the charge, in this case, did you misuse your Government credit card, she denied it.

Unknown Speaker: Yes, but she said... she went beyond that.

She said, I lost it.

I tore it up.

Mr. Marth: And she also attempted, Your Honor, to correct that later on, and when she attempted to correct it, and that's one of the risks here, that when that employee attempted to correct it she was charged with falsifying evidence and her entire credibility--

Unknown Speaker: Which, indeed, she had been doing.

That's a risk that she--

[Laughter]

A risk that materialized because of her own conduct.

Mr. Marth: --Yes, Your Honor.

Unknown Speaker: So what's wrong with that?

Mr. Marth: Well, the danger here that if an employee... for example, in a couple of these cases they were asking questions, in Ms. Walsh's case about some conduct that occurred 3 years before, and in the Barrett and Roberts case they were asking them how were they spending a 2-hour period 14 months before.

So if an employee who answers, and blurts out an answer... when the Government asks, for example, in Barrett and Roberts, were you working on Government business on June 8, 14 months ago, between the hours of 1:30 and 3:30, they say, yes, we were.

Well, you know, the risk is that then when they check their records, or have other opportunities to look back, they may find that indeed that that was not what they were doing 14 months before.

Unknown Speaker: Well, doesn't there have to be intentional misrepresentation?

Doesn't the Government have to show it's intentional?

Mr. Marth: Well, yes, Your Honor.

Unknown Speaker: Well, doesn't that solve that problem?

Mr. Marth: Well, the problem is the chilling effect on an employee of denying--

Unknown Speaker: Chilling effect on lying.

Mr. Marth: --Chilling effect on denying misconduct.

As both Justice Kennedy and Justice O'Connor have pointed out in the former argument, what you have here is, for examples, if somebody comes up, an investigator says, were you 5 minutes late to work, and you say, no, I wasn't 5 minutes late to work, well, suddenly what was a 5-minutes-late-to-work charge, which may involve a slap on the wrist, maybe even a written reprimand, now becomes a removable offense.

Unknown Speaker: Yes, but that's because it's a more serious thing to do.

It's just... a cover-up is almost always more serious than the underlying offense.

Look at the Alger Hiss case.

They asked him in 1951 or '50, whenever the trial was, about things that happened in 1937.

The statute of limitations on the substantive offense had run, so he was just found guilty of perjury, so lying can produce an offense where there was none before.

That's what Congress has said.

Mr. Marth: Your Honor, but here Congress has said that employees, when they're going to be disciplined, have certain rights, and the issue is, are those rights to a meaningful opportunity to defend affected when... before those rights are ever given, and here you have... I think it's important to understand the context.

For example, in Mr. Erickson's case, the initial decision indicated that he was put into a room and questioned and told to fill out certain answers to questions.

He asked for counsel.

He was denied it.

He asked to leave the interview room.

He was denied it.

He put down that he felt that he was under duress and loss of his job if he responded, so what meaningful opportunities does he have subsequently to respond when he has been under all this pressure and coercion early on to respond to the Government's investigation?

Unknown Speaker: But even this case, how does it fit with what the Federal Circuit said its narrow holding was, that as it said, that false statements made during agency investigations may properly be subject to falsification or similar charges?

Why wasn't what went on part of an investigation?

Why doesn't... shouldn't we read what the Federal Circuit says the law is, apply it to that fact, and doesn't... that person doesn't come within this decision.

Mr. Marth: Your Honor, that's the one point I agree with General Waxman on.

I don't know how the court of appeals could say that in light of these facts, unless the court of appeals was saying, when you begin to focus an investigation on a particular respondent similar to a criminal context, certain rights attach.

Unknown Speaker: Well, but this seems to say just the opposite.

It says, of course, when they... during the investigation they may be subject to--

Mr. Marth: Well, I mean, there's no question that these questions were given during the investigation, but what is evident is that the investigation had focused on the individual respondents in this case.

For example, in Ms. Walsh's case, the investigator came and said, we have talked to 10 people, and we have statements showing that basically you've lied to us, or that you are guilty of this misconduct, and you better get your answers right, because if you don't get your answers right, we've got other penalties that we can institute.

So you're right, Your Honor, that the court of appeals used that phrase about an investigation, and the only way that I can reconcile that phrase is in terms of the fact that the investigation had now focused to the point on these respondents that they were in effect the persons that were going to be put to the charges on.

Unknown Speaker: --Mr. Marth, can I... let me express what... the trouble I have with your presentation.

You're relying on the Due Process Clause which prevents the deprivation of life, liberty, or property without due process, and your claim here is that the property of this job, this Federal job is unfairly taken away unless the individual is allowed to make misstatements during the administrative proceeding that would result in taking it away.

Mr. Marth: Not exactly, Your Honor.

In terms of the administrative proceeding I'm not taking the position that anyone at a Merit Systems Protection Board hearing has a right to lie.

In fact, we're saying specifically to the contrary.

Unknown Speaker: Just in the investigation.

Mr. Marth: Just in the investigation prior to the meaningful rights that Congress has given in 5 U.S. Code section 7513.

In other words, when these persons were all questioned they had not been told that they had a right to a lawyer, they had not been told that they had a right to see the charges against them, they were not given any adequate time to respond to the charges.

They were basically put in a room and said, respond now.

Unknown Speaker: Once the proceeding starts, however, you agree that there's no such--

Mr. Marth: I agree, Your Honor.

Unknown Speaker: --No such right.

But were they told that what you're about to say is important, and if you lie you are subject to criminal liability, or the equivalent?

Mr. Marth: I don't think the record is clear on that, Your Honor, Justice Breyer.

As far as I can tell, the employees were not told anything about that.

Unknown Speaker: I mean, what I... the difference between this case and Alger Hiss illustrates the point that when a person commits perjury he is put under oath.

It is made clear to that person how important what he's about to say is, and what will happen to him if he lies.

People when they're not under oath say all kinds of things.

I do.

You may.

I mean, I try not to lie.

[Laughter]

I wouldn't like to call my wife in to say, in minor matters I... you know, you say... well, my goodness.

So there is a problem, but I don't... I see a problem, and to that extent I understand your point.

But what I don't see is how to solve that problem within the context of the law that we're arguing about, and if you can find a way to do that, I would be interested.

Mr. Marth: Well, Your Honor, one thing, of course, that would solve the problem would be that there would be no investigation questions to a given employee who's under charges until they're given--

Unknown Speaker: Yes, yes--

Mr. Marth: --Until they're given their rights.

Unknown Speaker: --I mean a legal route within the framework of the law we are discussing.

Mr. Marth: Well, the legal framework, Your Honor, as I understand the court of appeals decision and what we're advocating here is that for the meaningful rights to apply, an employee has to be able to deny the misconduct, similar to a not guilty plea, and put the Government to its proof.

Unknown Speaker: Well, but we're not dealing here, are we, with criminal charges as such.

They may have done things that could result in criminal charges, but that's not what happened.

We're talking about whether there should be some employee sanction imposed for what they did.

Isn't that right?

Mr. Marth: Well, not only an employee sanction, but a--

Unknown Speaker: Isn't that what we're talking about?

Mr. Marth: --We are talking about a double sanction, yes, ma'am.

Unknown Speaker: And this Court has never imposed some kind of Miranda rights scheme in the context of looking into employee malfeasance or misfeasance, have we?

Mr. Marth: No.

No, Your Honor, you have not.

Unknown Speaker: But you would want us to impose something like that.

Mr. Marth: No, Your Honor.

What we're ask... we're not asking necessarily that employees be told anything, I think as Justice Breyer indicated, perhaps maybe give employees some kind of warning before they could be questioned.

Unknown Speaker: A Miranda-type scheme for--

Mr. Marth: Right.

Unknown Speaker: --employees.

Well, I think you might have a hard time persuading us that we ought to extend that--

Mr. Marth: No, I'm not advocating that.

I understood Justice Breyer might be--

[Laughter]

Unknown Speaker: --But that's not this case.

Mr. Marth, maybe you agreed too quickly that Justice Breyer had a problem.

I mean, Justice Breyer said he tries not to lie.

Were your clients trying not to lie?

Mr. Marth: Well--

Unknown Speaker: I thought if they were trying not to lie, nothing could happen to them.

Mr. Marth: --Well, the risk is that something could happen to them, Your Honor, and... Justice Scalia.

Unknown Speaker: The risk is that something could happen to them if it were proven that they were not trying not to lie.

Mr. Marth: Well, for example, in Ms. Walsh's case--

Unknown Speaker: I mean, life is tough.

We all have to, you know, live in some risk, but--

Mr. Marth: --In Mrs. Walsh--

Unknown Speaker: --that can't be eliminated.

Mr. Marth: --I'm sorry.

Excuse me, Your Honor.

In Mrs. Walsh's case the administrative judge that heard the case found that she did not lie, and when it got to the MSPB they found that she did lie, so there's the risk of credibility determinations here becoming... raising what is a simple minor offense up to a removable offense.

Unknown Speaker: But the MSPB ruled in favor of these employees, as I understand it, right?

Mr. Marth: That's correct.

Unknown Speaker: And was affirmed.

So wouldn't that same MSPB, as policer of this, be able to make distinctions between the employee who came across as terribly nervous and just tripped up a little, and say, that one, firing is too much for that, and then take the one who's deliberately trying to put the investigators off the track and say... make the penalty fit the crime.

You do have a policer in here independent of the agency, and that is the MSPB.

Mr. Marth: We do have a policer for some Federal employees, Your Honor, but not for all.

Postal employees, for example, unless they're in management, or unless they're veterans--

Unknown Speaker: We're dealing with a case that comes to us through the MSPB.

Mr. Marth: --Right, but I think it's important, though, if we're looking at due process rights available to the entire Federal workforce, that the Court understand that not all employees have a right to get that independent decisionmaker.

For many employees that final decisionmaker is the agency official that decides the case.

Unknown Speaker: I take it under your scheme if there's suspicion that a credit card has been misused and the supervisor said, I'd like to talk to you about this credit card problem, the employee has a right to say, I decline to make any statements on that unless you want to bring charges.

Mr. Marth: An employee can certainly do that, and the agency has the right to bring charges.

Unknown Speaker: Can the agency separately charge for noncooperation--

Mr. Marth: Yes.

Unknown Speaker: --and failure to answer?

Mr. Marth: Yes.

They did in this case.

Unknown Speaker: Well, but not under your scheme.

Under your scheme, the employer... the employee has a right to in effect be silent.

Mr. Marth: I don't believe I was ever advocating that, Your Honor.

Unknown Speaker: Oh, you would never give them a right to be silent, only to lie.

[Laughter]

I mean... but that will be the scheme you come up with.

He can be prosecuted if he says, I'm sorry, I don't want to answer, and then he can be removed for failing to cooperate.

If he had only lied, he would have been okay.

[Laughter]

Isn't that what we end up with?

Isn't that the logical position you're arguing, or are you saying they should also have a right to be silent?

You have a choice, to lie or be silent, either one.

Mr. Marth: Well, either one, they're subject to potential penalties.

Unknown Speaker: Is the penalty the same for simply saying, I don't care to discuss it, as it is for lying?

Mr. Marth: I am not sure on the table of penalties, Your Honor, whether or not the refusal to cooperate in an investigation is a removable offense or not, so I cannot answer that question.

Unknown Speaker: But you're not denying that it's permissible to remove the employee for failure to cooperate?

You don't deny... you don't assert that there's a constitutional--

Mr. Marth: No, but that--

Unknown Speaker: --prohibition, do you?

Mr. Marth: --No, but that puts the employee in the difficult situation where they're... where they're questioned, again, before they're given those meaningful rights that Congress has given them, that the issue is, at that point, what do they do?

Do they lie, do they do a simple no, which is what the Court found happened in this case.

Again, I mean, it's important to... for this Court to understand that King v. Erickson specifically said, there's no right to lie or to affirmatively mislead an agency engaged in investigation.

They said, merely they had a simple right to deny the charge, and that they did not have a right to tell tall tales, to tamper with evidence, to falsify records... they came down with a--

Unknown Speaker: Well, certainly it would mislead, if you're asked a question, did you misuse the credit card, and you say no, I didn't, when in fact you did.

That surely misleads if anything does.

Mr. Marth: --Well, I guess there is that issue of whether or not a simple denial is misleading, or whether to mislead or to deceive the Government requires some kind of more affirmative misconduct.

Unknown Speaker: Well, it's hard for me to see how the... you know, you could say perhaps a spinner of tall tales would dig their own grave by making extravagant statements that were easily refutable, whereas perhaps a simple no would be less easy to identify as perjurious.

Mr. Marth: Your Honors, we would contend that the due process concerns in this case with regard to risk of erroneous deprivation, basically that there are six potential risks to the employees in these... in this case.

First, there is the chilling effect stemming from the seriousness of the charge, which we've already talked about.

Secondly, an employee who is not represented during this process risks being coerced when questioned.

Unknown Speaker: Mr. Marth, may I just ask you one question about the relationship of the prior decisionmakers?

Did the MSPB get this rule from the Federal Circuit's prior decision, or did it originate with the MSPB?

Mr. Marth: The Federal Circuit in Grubka came up with the proposition to begin with that a person always has the right to deny a charge and put the Government to its proof.

Unknown Speaker: So it wasn't MSPB as... MSPB was not the originator.

Mr. Marth: That's correct.

Unknown Speaker: I didn't understand that your theory was risk of erroneous deprivation.

I thought what you were concerned with was a very sound and justified deprivation, and that's why the person would be allowed to lie a little bit of the way at the beginning so that he would be able to make a more effective defense later on without having given things away.

Mr. Marth: Well, Your Honor--

Unknown Speaker: Isn't that your theory?

Mr. Marth: --Yes, Your Honor, but the risk comes from requiring an employee at that early stage in effect to give up or minimize his later meaningful rights.

Unknown Speaker: Yes, but it's not a risk of erroneous deprivation.

Mr. Marth: Well, if he is required to respond with more than an exculpatory no in effect at that time, then there is that risk that his later rights would be deprived of him, deprived of him from a meaningful point of view.

Unknown Speaker: Well, it's a risk that his later rights will not protect him from a justified deprivation.

Isn't that it?

You're saying if he can't lie, and he doesn't remain silent, and he had to tell the truth, he wouldn't have much of a case later on.

That's your concern, isn't it?

Mr. Marth: No.

My concern is that before a person has a right to see an attorney, before they have a right to review their own records, before they have a right to look at the Government charges, it risks the deprivation of those rights if the agency can come in and question the employees and the employee does not have a right simply to deny the misconduct until he gets those rights.

At that point, any right to deny the misconduct stops, but it's only after he gets the meaningful rights protected to that employee by the Government would his rights continue.

Thank you.

Unknown Speaker: Thank you, Mr. Marth.

Mr. Waxman.

Rebuttal of Seth P. Waxman

Mr. Waxman: Mr. Chief Justice, and may it please the Court:

Mr. Marth may be simply have misunderstood or not know what the facts are with respect to the other five employees before this case, but he surely knows what the facts are with respect to his client, Sergeant Erickson, who was not put in a room and told he had to answer a series of rapid-fire questions.

The record in this case reflects that Mr.... that Sergeant Williamson at 7:20 in the morning signed a Kalkind statement acknowledging that he has... may be asked to provide answers to questions: I've been advised that I have a right to remain silent, but that I may be subject to disciplinary action for failure to answer material and relevant questions.

I've been further advised that the answers I give to these questions, or any evidence gained by reason of my answers--

Unknown Speaker: But Mr. Waxman, that... none of that was necessary.

Mr. Waxman: --It was absolutely not necessary.

I just don't want this Court to be under the misimpression that this man was somehow treated unfairly, 3 hours later--

Unknown Speaker: But even if he was put in a room and asked a bunch of rapid-fire questions, it seems to me we've got the same answer under--

Mr. Waxman: --That's... that's right.

He could simply have said, I don't remember, or I'd like to take time to think about it, or he could have confessed, and that was the case with respect to all--

Unknown Speaker: --Which is I suppose what he should have done, right?

Mr. Waxman: --We have as an... the Government as an employer has the right to ask that they do that, even if we had been "unreasonable" and put him on the spot and said, look, we're investigating this Mad Laugher incident, and were you... do you or do you not know anything about that, but none of the cases before this Court are anything approaching that.

Ms. Walsh, who supposedly was asked on the spot to talk about events that happened 3 years before, was accompanied by an attorney, made a long, discursive statement in response to questions, and there was a transcript.

She could easily have said, I don't remember.

It was a long time ago.

She gave a whole false story about a long relationship she had.

You are right.

It does not matter as a constitutional matter.

I just wanted the record to be clear with respect to this case.

Unknown Speaker: In fact, I don't suppose she could even say I don't remember, if she really did.

Mr. Waxman: That's... that's right, and the problem that Justice Breyer was suggesting that some people may have with the potential for abuse I think is dealt with very adequately by Congress and by the Office of Personnel Management in the relevant stat... provisions of the Civil Service Protection Act and the implementing regulations.

In 5 U.S.C. section 2301, that is the statutory provision that enunciates the merit systems principles, it states, among other things, that as a matter of statutory law all employees and applicants for employee... employment should receive fair and equitable treatment in all instances of personnel management, and it goes on.

Unknown Speaker: Is this... this is a minor... but I mean, it... point, but it's crucial, I guess not necessarily to whether you win or lose, but I'm still worried about whether this is a constitutional or a statutory case, and the language on 12a, you see, they say, the question before us is whether doubling up a misconduct charge, et cetera, deprives the employee of the due process that the statute intends, and then they talk about Federal law throughout the rest of it, and they've got the Constitution in there quite a lot, but I... maybe it's the same answer.

I don't know.

But is this... what do you think about that language?

Mr. Waxman: There is simply no doubt that the Federal Circuit was ruling as a matter of constitutional due process.

It says so over and over and over again.

When you get to the--

Unknown Speaker: Mr. Waxman, you would not be happy, I don't suppose, with a decision that says we find no constitutional basis for this decision, but we leave open the question whether it's commanded by the statute.

Mr. Waxman: --I don't think there would be any basis whatsoever... that would be the most muscular interpretation of the statute imaginable.

I don't think there would be any basis for it, but--

Unknown Speaker: You think it's more muscular than the interpretation of the Due Process Clause?

Mr. Waxman: --Well, that's... you mean by the court below?

Unknown Speaker: Yes.

Mr. Waxman: That's rather--

Unknown Speaker: We've muscled that around before, right?

[Laughter]

Mr. Waxman: --That's rather muscular.

We'll take it, whatever this Court's judgment is.

The question presented is a constitutional one.

I think the reason that there's no statutory question in this case is that there simply is no statutory provision to which this claim could be attached.

Unknown Speaker: Well, he... they've attached 7513 and to the list in 7511 and they say, for the efficiency of the service, and then they list all these rights and they say, well, obviously, this means that you have a right to say no, and certainly during the hearing, and since you must have a right to exculpatory no during the hearing itself you have this reading.

Yes, it's muscular.

[Laughter]

Mr. Waxman: It's... look, it's not how... it isn't how the Government has read the opinion, but it would be wonderful if the Court could so read the opinion and then hold that even as a matter of statutory construction it simply cannot be that as an a priori matter it doesn't promote the efficiency of the service to sanction employees who deliberately and intentionally lie to their employers.

We haven't read it that way, but if the Court feels that it could, we'd embrace it.

If there are no further questions, we'll submit.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Waxman.

The case is submitted.

Unknown Speaker: The honorable Court is now adjourned until tomorrow at ten o'clock.