NASA v. FLRA - Oral Argument

Argument of David C. Frederick

Chief Justice Rehnquist: We'll hear argument next in No. 98-369, National Aeronautics and Space Administration v. Federal Labor Relations Authority.

Mr. Frederick.

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

This case concerns whether an office of Inspector General investigator interviewing a Federal unionized employee for alleged misconduct is a, quote, representative of the agency who must allow the participation of a union representative under the Federal Service Labor-Management Relations statute.

The FLRA and the court of appeals held that the OIG agent is such a representative either because the Inspector General is under the control of agency management or because the office of Inspector General investigative work product provides a benefit to agency management.

Both theories are mistaken.

Justice Scalia: Mr. Frederick, before you get too far into it, how is the FLRA appointed?

Is it a independent agency?

Mr. Frederick: Yes, it is, Justice Scalia, appointed by the President.

Justice Scalia: But once appointed, cannot be removed by him?

Mr. Frederick: No.

The President can remove the officers in the FLRA.

Justice Scalia: Well, if all of the agencies don't like this ruling that the FLRA has come up with, why don't they just tell the President to... you know, to tell them to shape up or ship out and put in people who will agree with what the agencies want?

Why do you come to us to solve this internal executive branch problem?

Mr. Frederick: This Court has made clear on numerous decisions, Justice Scalia, that this particular statutory scheme is permissible and acceptable and that the courts are the appropriate place to resolve disputes that arise between the FLRA and agency management.

And this case is no different from those other types of disputes.

Justice Stevens: You're right.

Justice Scalia: We've done it before, but I must say, it just seems surpassing strange.

I mean, here you have the agencies... usually when you have a disagreement among the agencies, you go to the... you go to the chief executive and you say, you know, the FBI and the CIA are in disagreement.

Tell us which one is going to prevail.

Chief Justice Rehnquist: We had the Federal Power Commission suing the Department of Interior 50 years ago, 60 years ago here in this Court.

So, this is nothing unusual.

Justice Scalia: Well, the Power... isn't the Power Commission an independent... wasn't the Power Commission an independent regulatory agency?

Mr. Frederick: I'm not an... I am not prepared on the Federal Power Commission.

Justice Scalia: Well, I think it was so the President couldn't control it.

Now, whatever the constitutionality of that, I could understand why you had to come here, but here you have two agencies one agency against the rest of the Government, all of them within the control of the President, and... well, all right.

You say we've done it before.

I guess... I guess that's enough of an answer, but it seems surpassing strange.

Mr. Frederick: If I could return to this case, the control theory upon which the court below based... part of its theory is based on a mistaken construction of the Inspector General Act, a statute that is outside the FLRA's expertise.

Although the Inspector General Act requires that the Inspector General be under the, quote, general supervision of the head of the agency, that requirement does not transform the Inspector General into a representative of the agency.

Rather, the general supervision requirement requires the Inspector General to comply with the generally applicable rules and regulations of the agency, such as procurement rules, equal employment opportunity regulations, limitations on outside employment by the Federal employees that are partisan, political...

Justice O'Connor: Well, Mr. Frederick, normally we would defer to the agency interpretation of the meaning of the language, and here the FLRA wants to tell us that they interpret this language of representative of the agency as including the Inspector General.

Mr. Frederick: Deference...

Justice O'Connor: So, why don't we defer?

Mr. Frederick: Two reasons, Justice O'Connor.

First, that interpretation rests not so much on an interpretation of what representative of the agency means, but an application of that to the Inspector General Act.

The theory... and I have given two theories.

One is that the control by the agency representative constitutes who a representative of the agency is.

The FLRA is wrong about that because they have misconstrued the Inspector General Act.

They are not entitled to deference because that is not a statute within their expertise.

The second theory is that the IG provides a benefit to agency management.

The FLRA is not entitled to deference under that theory for several reasons.

First, their interpretation that any entity that provides a benefit to agency management is... is seriously overbroad.

That construction departs from the purposes behind the labor statute and it would also encroach on an Inspector General's independence.

It would reach not only an agency's Inspector General, but it would also apply to Federal and State law enforcement officers who investigate criminal wrongdoing by agency employees and submit an investigative report to the head of the agency who then uses that report for disciplinary purposes.

Justice Scalia: Could I come to your first point?

You say the FLRA does not have the expertise.

Is... is that the criterion for whether we give deference?

thought it was rather whether the agency was acting within its scope of administration.

If it's a field that the agency has been given authority over, whether or not it's very expert, even if in this aspect of it it may not know any more than courts, if it has been given authority over that area, we generally defer.

And hasn't the FLRA been given authority over this area to... to stop this or to permit it?

Mr. Frederick: Justice Scalia, the answer is no, and the reason is that there is nothing in the Inspector General Act that gives the FLRA authority to construe the provisions of that statute just as this Court in the ATF case held that the FLRA was not entitled to deference in... in construing the travel allowance statute, which is a statute that was outside its area of presumed expertise.

Justice O'Connor: Well, I thought the statute we were construing was 5 U.S. Code, section 7114 (a)(2)(B).

Is that right?

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

Justice O'Connor: Is that within the jurisdiction of the FLRA?

Mr. Frederick: Yes, it is, Justice O'Connor.

Justice O'Connor: So, why can't it say what is meant by the term a representative of the agency?

Mr. Frederick: Well, there are two bases on which it has done that, and... and let me try again.

What a representative is depends upon the application of various other laws, and the basis of their decision is... is based on two theories.

One is that a... to be a representative, one has to be under the control of agency management.

To answer that question, you have to look to the Inspector General Act, which is the statute that the FLRA has no particular expertise in construing, and they simply misconstrued that statute.

Justice Ginsburg: But, Mr. Frederick, I didn't understand them as doing that.

I thought they said, well, we're dealing with a statute that codifies the Weingarten rule.

So, the focus of our inquiry is, first and foremost, the person who's supposed to benefit from that rule, the employee who was there alone confronted by the employer with an allegation of serious misconduct, frightened and needful of help.

That's what the Weingarten rule was meant to take care of, and that's what the FLRA has in its charge.

And then it says, for this purpose and this purpose only, does the Inspector General represent the agency vis-a-vis that employer?

And it was only in that very limited sense with the first view of FLRA its bailiwick, which is we've got this statute that codifies the Weingarten rule.

What was Weingarten supposed to do?

Mr. Frederick: I have several responses to that, Justice Ginsburg.

First, the Weingarten decision itself was based on equalizing the balance of power between labor and management.

It... it... as has been construed in subsequent decisions, it does not include those employees who are not unionized.

It does not include outside law enforcement agencies.

It only includes management interviewing a unionized employee for the... so that the rights that were collectively bargained would not be undermined by management by using the investigatory process.

That concern is not present here because the Inspector General is precluded from participating in the collective bargaining process and is not part of that process.

Justice Ginsburg: What was the... all the language in Weingarten... and I realize that Weingarten itself is not what's before us, but 7114... that the employee may be too fearful or inarticulate to relate accurate... accurately the incident being investigated?

That doesn't sound like we're concerned about equalizing bargaining power across the table over an agreement, but the concern is 262 to 263 of Weingarten where the Court speaks of the fearful, inarticulate employee who may not be able to relate accurately the incident that's being investigated or being too ignorant to raise extenuating circumstances.

Mr. Frederick: That was a factor, Justice Ginsburg, but as we have quoted in our main brief at pages 20 to 21 from the Court's Weingarten decision at pages 260 to 261, the safeguard is to redress the perceived imbalance of economic power between labor and management.

Chief Justice Rehnquist: The... the statute says an exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented.

The representation is of the union.

Justice Souter: It isn't of the individual.

Mr. Frederick: That's correct, Mr. Chief Justice.

And it's also clear that if a person is not an employee or is not a... a person as defined under the Federal labor statute, that person cannot invoke the rights under the Weingarten statute.

At present approximately 45 percent of the non-uniformed Federal work place... work force cannot invoke these Weingarten rights.

So, it is perfectly clear that what Congress was intending to get at was the balance of power between management which would negotiate collective bargaining agreements and the unionized work force which would be on the other side of that...

Justice Breyer: Why wouldn't Congress have just wanted to, just thinking about it crudely, say, well, if a person who can afford it can have his lawyer in the room, many of those who can't afford it could have their union rep?

I mean, the union rep would just represent the same kind of thing, not in every case, but by and large... protect the individual, particularly ones who can't afford to pay for the lawyer.

I mean, maybe they didn't think that at all, but that's my question.

Why wouldn't they... why wouldn't you want that?

Mr. Frederick: Well, that would be...

Justice Breyer: Why isn't that a reasonable interpretation of what Congress was doing here?

Mr. Frederick: No, Justice Breyer, it is not.

And it is reasonable if management is conducting the interview, and we would concede that in those... throughout the Federal Government in virtually every department, management conducts interviews for disciplinary purposes of employees.

And in those contexts, it is perfectly appropriate for a union representative to be present at that interview.

But an Inspector General investigation is not an interview that is being conducted by or for agency management.

Agency management doesn't have the authority to designate the Inspector General to do anything, to order the Inspector General to designate what the Inspector General...

Justice Breyer: No, that's right.

But, I mean, my... my question is really just focusing on assuming it's linguistically possible, is it a reasonable interpretation of what Congress might have been after?

I mean, obviously, if Congress is trying to protect the individual by giving him a right to have his union rep present, this would be the classic case where he needs the protection.

Mr. Frederick: No, it would not, Justice Breyer.

Justice Breyer: All right.

Well, that's what I would like you to explain.

Mr. Frederick: In the private sector, if an FBI agent shows up at a company to interview an employee who is accused of criminal wrongdoing, there is no Weingarten right.

And the reason why there is no Weingarten right is that the FBI doesn't represent the corporation's management.

In the same way here, the Inspector General is provided with independence within a... within the agency so that it does not represent agency management...

Justice Stevens: Would the Weingarten right apply in the private sector if the employer hired the Pinkerton Detective Agency to come in and conduct the interview?

Mr. Frederick: Yes.

Justice Stevens: It would apply.

Mr. Frederick: Yes, because...

Justice Stevens: Why isn't that the same as this?

Mr. Frederick: The Pinkerton control... the Pinkerton Agency would be within the control of agency management, and it would simply be a designatee... a designatee of agency management.

Here the agency manager is precluded by the terms of the Inspector General Act from ordering the Inspector General to conduct...

Justice Stevens: No, but doesn't the statute provide that there... that they report to and under the general supervision of the... of the agency?

Mr. Frederick: That's correct.

Justice Stevens: And wouldn't they normally, if they discovered some kind of employee misconduct, report it to the agency?

Mr. Frederick: That's correct, but that doesn't transform the Inspector General into an agents... anymore than the FBI is...

Justice Stevens: No, but the whole purpose of the Weingarten rule, it seems to me, is duplicated in that... in that setting.

Mr. Frederick: No.

The distinction, Justice Stevens, is that...

Justice Stevens: I understand that they have to be a member of the bargaining unit and so forth, but that's... this fellow was a member of the bargaining unit, wasn't he?

Mr. Frederick: That... that's correct.

And here the focus is on whether the Inspector General is an independent entity, and that is where...

Justice Stevens: Well, he's like an independent contractor.

He's got some control and some independence.

Mr. Frederick: No.

In fact, that's... that's not true because the... an independent contractor would be designated by the head of the agency.

Here this person, the Inspector General, is not being designated by the head of the agency.

Rather, the Inspector General Act provides organic authority for the Inspector General to conduct such investigations as he or she deems necessary or desirable, to obtain the documents within an agency that the Inspector General thinks are necessary to conduct the investigations.

The Inspector General is required to keep confidential the criminal information that he obtains or she obtains.

Justice Ginsburg: Mr. Frederick, inside of an agency like this one with an Inspector General, what percentage of the employee misconduct would go to an ordinary manager and what percentage would be under the wing of the Inspector General?

Mr. Frederick: I can't give you that percentage, but what I can tell you is that approximately 15 percent of the NASA-OIG's investigative caseload concerns employee misconduct cases.

The other 85 percent deal with other types of criminal misconduct by persons that are outside the agency attempting to perpetuate a crime against the agency.

Justice O'Connor: Does it ever happen that the agency head would request the Inspector General to make an investigation?

Mr. Frederick: Certainly, but that also does not transform...

Justice O'Connor: It's not an order, but I guess the agency can request it.

Mr. Frederick: Yes, just as an agency head has requested the FBI to conduct an investigation too, and that doesn't transform the FBI into a representative.

Justice O'Connor: And I guess the agency head has to order the employee to appear and be available.

Mr. Frederick: That's correct, which further indicates the insulation of the Inspector General's investigative function.

The Inspector General can't show up and order an employee to submit to an interview, just as an Inspector General who finds evidence of wrongdoing has no authority to punish.

Justice Kennedy: Well, it seems to me your case would be stronger if he did have that authority.

Mr. Frederick: No, I don't think so, Justice Kennedy, because this shows that the Inspector General has to... in order to complete his... his function, has to do what he does, and then the agency manager does what he or she does.

Justice O'Connor: Well, but now, if the employee doesn't want to cooperate with the interview, is it the employing agency that says if you don't, I'll discipline you or fire you?

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

Justice O'Connor: So, there is to that extent control over...

Mr. Frederick: It's the same in an FBI interview.

If if... if a Federal employee does not want to submit to an interview by the FBI, the agency manager can order the Federal employee to submit to that interview, but that doesn't transform the FBI into a representative of agency management either.

And in the disciplinary function, the IG has no role whatsoever.

Once the investigation is completed and the report is transmitted to the head of the agency, that process carries...

Justice O'Connor: What position does the FLRA take concerning an FBI investigation or a grand jury investigation?

Have they said?

Mr. Frederick: They have hinted in their decision in this case, which is at 43a of the petition appendix in footnote 23, that the D.C.... and they're referring to a D.C. Circuit case which pointed out that the FLRA's construction would also apply to the FBI in the context of an... of an investigation done of a Department of Justice employee.

And they have pointed out there that there is a statute which they construe to exempt the FBI in certain circumstances.

That statute is 28 U.S.C. 535(a).

But I would like to give... I would like to point out to this Court that that statute has been seriously misconstrued by the FLRA.

That statute was enacted in 1954 to resolve the dispute that had arisen between the Treasury Department and the Department of Justice over whether or not FBI employees could investigate wrongdoing committed by Treasury employees.

The dispute that had arisen had blocked the FBI basically, and... and Congress passed this statute to ensure that the FBI would have jurisdiction to investigate those matters.

The House report which accompanies that... it's House Report 2622 at pages 2 to 3, published in 1954... makes perfectly clear that that statute was not intended to change anything about investigative procedures.

It was simply jurisdictional, to provide the FBI with concurrent jurisdiction so that it also could investigate allegations of wrongdoing.

If the FLRA is correct in this construction of the statute, it would only apply to title 18 offenses, as by the plain terms of 535(a).

It would not apply to drug offenses in title 21 or money laundering in title 31 or anti-kickback and public contracting offenses in title 41 or in harboring a... an immigrant or a fugitive under title 8.

So, the FLRA in relying on this statute, has... has construed the phrase, notwithstanding any other provision of law, in a... in a very erroneous way.

Justice Ginsburg: Mr. Frederick, I... I understood the FLRA to take the position that the FBI and external agencies, grand juries are not... are out of this, and perhaps it would be best for the FLRA to speak for itself on that point.

Mr. Frederick: Could I just have one point, though, Justice Ginsburg?

And that is that the FLRA has held that in a joint investigation by the FBI and an Inspector General, that the Weingarten rights are appropriate under the theory that the information is shared with agency management.

And the NASA-OIG... two-thirds of its investigations are criminal investigations, and over half of those, nearly 60 percent, are joint investigations with another law enforcement agency like the FBI or the Department of Defense.

Justice Ginsburg: May I ask you a question about something that is in... in your agency's domain and... or at least in the executive domain?

There's just been a change for the IRS.

Now they have a real Inspector General.

Up until now the members of the union, NTEU, have had the union representative with them.

Now those same people, I take it, will no longer have the representative because of the new installation of an Inspector General.

Is that right?

Mr. Frederick: When they are being investigated by the Inspector General.

When they are being investigated by agency management, they are still entitled to have a union representative.

Justice Ginsburg: Well, they had something that was pretty close to an Inspector General, but not quite.

Right?

Mr. Frederick: No.

They had an internal affairs committee that did internal affairs investigations.

This happened throughout the Government, Justice Ginsburg, as amendments to the Inspector General Act were made.

Justice Ginsburg: But in any event, there were people who... doing the same thing now that they... if they had done it a year ago, would have the union representative with them and now will no longer.

Mr. Frederick: It would be no different than if, instead of creating an office of Inspector General, Congress had said, we want the investigative function of the agency transferred from under agency management's control and given to the FBI.

There would be no difference.

Justice Ginsburg: Well, there is... there is a difference between a wholly external agency, an FBI or CIA, and something that's still under the roof of the... of the department.

Mr. Frederick: It's a policy decision that Congress made to create entities that would be developing particular expertise, sources of information, and have expert knowledge of the kinds of wrongdoing and other frauds and abuses that might be committed within Federal agencies.

Justice Souter: But... but maybe what that argues for is that we've really got a... a third alternative here, and instead of looking at it in an either/ or situation, there's a new possibility.

Let's assume that we conclude that, in fact, the... the statute does guarantee the... the right to have the presence of the union rep.

Might it be the case that... that where things are going wrong here is in assuming that the agency, for purposes of an unfair labor practice determination, is the normal head of the agency, as distinct from the Inspector General for that agency.

The reason I suggest that is the object of the unfair labor practice determination is to change the behavior of management.

Well, the agency here is being represented, to the extent that it's represented at all, by the Inspector General.

Conversely, management in the sense of the usual line of authority can't control the Inspector General.

Is it open to us here to conclude that, number one... and I realize you disagree with this... that the... that there is a guarantee of the rep at the interview, but that any determination of unfair labor practice has to run against the Inspector General as opposed to running against the agency in the usual sense?

Mr. Frederick: Justice Souter, that would... that would impose a penalty on an Inspector General for violating something in the collective bargaining relationship to which the Inspector General is not a party.

Justice Souter: Well, he's not a party, but he... he has... he certainly has as much knowledge or is entitled to as much knowledge of the collective bargaining arrangement as the... as the normal head of the agency is.

And... and the point is, if you're... I mean, the rationale is if Congress wants these investigations to be done not by the FBI but within the agency itself, there's... there's nothing conceptually odd about saying that they've got to be done within the... the confines of the agreements that the agency has made, including a collective bargaining agreement.

And as long as the Inspector General has access to it and has as much chance to know what's going to violate it as the nominal head of the agency would, there's... there's nothing odd about saying that the... that the Inspector General should be bound by it.

Mr. Frederick: Yes, there is, Justice Souter, for two reasons.

First, the agency head would be given extraordinary leverage to decide how independent an Inspector General could be by being able to bargain over the Inspector General's independence in exchange for concessions by...

Justice Souter: Well, that might violate the statute creating the Inspector General.

I'm assuming that we've got a situation like this in which there is... there is no claim that there is a... a... in effect, a... a statutory... or a conflict between what the collective... what the... the labor right is and... and the Inspector General's capacity to investigate.

Mr. Frederick: My second point then I hope will satisfy you is that nothing in either statute would... gives the FLRA the authority that it asserts in this case, which is to decide on a case-by-case basis whether or not the prerogatives of the Inspector General, as defined in the Inspector General Act, have been defeated.

The FLRA has no expertise in law enforcement matters, and it is... is attempting to arrogate to itself the authority to decide on a case-by-case basis whether the Inspector General Act is being hindered by particular demands made by the union.

Justice Kennedy: Right.

Justice Souter: Let me go back to my... my question with maybe a slight more exact question.

Is it textually possible to come out the way I have just suggested?

Mr. Frederick: I don't think so, Justice Souter.

Justice Souter: What's the textual bar to it?

Mr. Frederick: Because it requires you to determine that an Inspector General is under the control of agency management.

Justice Souter: No, it doesn't.

I mean, my assumption is... is exactly the contrary.

My assumption is that the Inspector General is part of the agency.

Administratively we know that's so.

My... my assumption also is that the agency head, whoever that may be, cannot control the Inspector General in... in structuring his investigation.

I... I'm saying that the object to be served by an unfair labor practice determination is an object to change behavior, and the relevant agency behavior here is the behavior of the Inspector General.

Mr. Frederick: And the Inspector General does not...

Justice Souter: Now, textually if that... if you... if that rationale is... is roughly sound, is there any textual basis that precludes our indicating that that is the way the... the two schemes ought to fit together?

Mr. Frederick: Yes.

It's overbroad.

It interprets representative far broadly and sweeps in outside law enforcement agencies as well.

Justice Souter: How does... how does it do that?

The rationale is that the Inspector General is part of the agency, and... and we know that the statute constituting the Inspector General so provides.

Mr. Frederick: It would make the FBI a representative of the agency...

Justice Scalia: Why?

Mr. Frederick: an internal Department of Justice investigation of a Department of Justice employee.

Justice Scalia: It might well.

It might well.

Mr. Frederick: If I can reserve the balance of my time.

Chief Justice Rehnquist: Very well, Mr. Frederick.

Mr. Smith, we'll hear from you.

Mr. Smith, the Government in its brief in this case, the... the part of the Government that is petitioning...

Unidentified Justice: [Laughter]

Argument of David M. Smith

Chief Justice Rehnquist: says that the Federal Labor Relations Authority has greatly expanded on Weingarten rights.

They are no longer just the right to have the union be represented alone.

They... they say... and they cite cases... the... the right to be informed in advance of the general subject of an examination so the employee and union representative can consult before questioning begins, the right to halt an examination and step outside the hearing of investigators to discuss with the union representative answers to the investigator's questions, the right to negotiate for 48 hours' notice before an investigator can begin an examination.

Do you agree that those are correct descriptions of rulings of the FLRA?

Mr. Smith: No, Your Honor.

I'm sorry.

No, Mr. Chief Justice.

I think they would be distorted explanations of what the Authority has held in a number of cases.

It is true, in point of fact, that unions have come forward and attempted to expand on the basic Weingarten right and to bargain for matters over and above the basic right to have a union representative present during an investigation.

And it is true, in some of the examples you cite, the Authority might have held certain proposals to be negotiable.

What they failed to cite in their brief is when the Authority makes such a ruling, if we are deemed to be overbroad in our interpretation of what the right under section 7114 (a)(2)(B) includes, we're subjected to judicial review and have, in some of those cases, been corrected by the courts of appeal on review.

Chief Justice Rehnquist: But presumably you... if the argument that you're making here, you ought to get deference so that if... if the thing is debatable one way or the other, your view ought to prevail.

The view of the agency ought to prevail.

Mr. Smith: Of course, we would make that argument.

And in point of fact, I think the Authority's interpretation of how the statutory right in section 7114 (a)(2)(B) should be interpreted is pretty much in line with how the courts have interpreted the Weingarten right in the private sector.

For instance, you... you advert to the right to prior notice to an interview.

The D.C. Circuit ruled in the Postal Service case, which is cited in the brief, that this would actually facilitate the interview if the union representative, where possible, knew in advance what was going to be discussed at the interview.

Then the union representative would be prepared and be able to... to adequately advise the individual being subjected to the interrogation about what was going on.

So, this is a private sector rule.

I'm not aware that the Authority has specifically adopted it.

The other rule, the right to stop an interview, the Authority has specifically gone the other way and said there is, in fact, no right to cease and stop an interview.

In one case, we did say that where it would not have interrupted the flow of the legitimate function of an employer to do an interrogation, that that was a permissible... permissible thing to acquire an occasional break to allow conferences.

But there's no per se right to break during an investigation.

The Authority has embraced this Court's rule that the employer has the right, when... when interrogating an employee, to... to get to the bottom of what's going on, to hear the employer's... the employee's story and to perform the interrogation.

The... the Authority's rule in this case...

Justice O'Connor: Has the Authority taken a position in the situation of an FBI investigation or a grand jury investigation?

Mr. Smith: We note in... in our... in our brief, as counsel adverted to, Your Honor, that the FBI would not be a representative of the agency under our statute in all likelihood because the FBI has, number one, concerns outside of the internal agency.

If you will, in this case, the NASA-OIG only has concerns that relate to the... that particular agency.

An FBI agent, on the other hand, has concerns that relate outside of the Department of Justice and to any other agency.

We also note 28 U.S.C., the particular section that says that FBI agents have the ability to conduct interrogations notwithstanding any other provision of law.

I think it's important to note that the Inspector General statute contains no such language.

So, when we look at the FBI statute on the one hand, which says, you've got the right to... to investigate a crime notwithstanding any other provision of law, the IG statute starkly contains no such provision, which led the Authority and the Eleventh Circuit to conclude that the Inspector General must comply with, among other laws, the labor statute when interrogating a bargaining unit employee.

Justice Ginsburg, if I could return to a point that you raised.

It is in fact true that the trend is that investigations are being conducted more and more by agency Inspectors General.

In the Fourth Circuit's NRC case, which is cited in our brief, the Fourth Circuit noted that all investigations within the Nuclear Regulatory Commission are conducted by the office of Inspector General.

You noted that the amicus NTEU had filed a brief recognizing that under the IRS Reorganization Act of 1998, investigations previously performed... excuse me... by the office of Chief Inspector are now being performed by the Department of Treasury IG for tax matters.

The... the upshot of this is, employees who previously enjoyed the Weingarten right under our statute are being stripped of it because of the... the growing trend of Inspectors General doing interviews.

This is very significant.

There's no indication that that was the will or the intent of Congress when they... when they passed any of these... any of these bills or that agencies should, by the simple expedient of its assigning an investigation or requesting an investigation by the Inspector General, to be able to avoid section 7114 (a)(2)(B) of our statute.

Justice Kennedy: Does the NASA Inspector General appoint to anyone other than the head of NASA?

Mr. Smith: No.

Justice Kennedy, as we read the statute, the NASA-OIG reports to the Administrator of NASA.

Justice Kennedy: Well, I assume... could he go directly to the FBI or does he have to go first to the head of NASA, if he sees something he thinks the FBI should know about?

Mr. Smith: In this case?

Justice Kennedy: No, generally.

Mr. Smith: Generally, I think the Inspector Generals might well receive tips or advice from an external law enforcement agency, but they have the right to investigate on their own.

They don't have to be ordered to investigate by the head of the agency.

Justice Kennedy: Does the... does the Inspector General for NASA report to anybody in... in the office of Inspector General?

Mr. Smith: If I understand your question, the... the office of Inspector General has a number of people that work in it.

This particular individual...

Justice Kennedy: Yes.

Mr. Smith: that did this interrogation was at the Marshall Space Flight Center and reports to the NASA-OIG in Washington at headquarters NASA.

Justice Scalia: To the NASA-OIG.

Mr. Smith: That's correct.

So the... so the line of command is that the OIG personnel work OIG personnel.

Justice Kennedy: Was... was the employee in this case entitled to counsel to be present?

Mr. Smith: Yes.

Justice Kennedy: Why?

Mr. Smith: The employee requested counsel and the request to counsel was acceded to.

Justice Kennedy: But was he entitled?

Was the employee entitled as a matter of law to have counsel present if... assume the OIG objected.

Mr. Smith: As I understand the OIG position, they acknowledge that the right to counsel is present.

Justice Kennedy: Assume that... and why?

Is that because of the APA, section 555?

Mr. Smith: The Eleventh Circuit found as much.

We think the Eleventh Circuit is correct.

They quibble with this in their reply brief.

I don't know that it matters so much where the right to counsel comes from.

There seems to be agreement... and... and once again, as I understand their position... that there is, in fact, a right to counsel at an investigative interview.

Now, this makes a good point, if you will.

If the right to counsel can be done without affecting and harming the... the... the sanctity of the investigation, if the OIG can perform their... their important and independent investigative role with a counsel present, it does cause the question, as the Eleventh Circuit noted, why a union rep would cause more of a problem than... than the right to counsel.

Justice Kennedy: Well, because I suppose the answer is, is that the union rep has a obligation to... to report to the union.

The... the OIG could tell the counsel and the employee, look it, this is going to be confidential.

If... if you people do not cooperate with me, if you do not keep this confidential, I'm going to lower the boom on you.

I'm going to recommend discipline and so forth and so on.

He can't say that with the union because the union's obligation is to... to report back to the union.

Mr. Smith: In point of fact, the Authority has responded to that very concern, Justice Kennedy, in a recent decision of the Authority, which we... which we cite in our brief.

The Authority has interposed no objection to the bargainability of proposals that would place confidentiality constraints on the representative during an investigation.

So, in fact, to the extent that the sanctity of the investigation requires that confidentiality attain, then the Authority has said this is a permissible way to go.

Justice Kennedy: Yes, but that's troublesome because that seems to me to compromise the union representative's function and role vis-a-vis the union...

Mr. Smith: Well...

Justice Kennedy: which is the whole reason that he's there under... under Weingarten.

Mr. Smith: No.

The whole... I think there's a... there's a two-part reason that... that a representative is... is there during such an interrogation.

In the first place, the representative is representing the employee.

In the second place, he... he or she is representing the interests of the bargaining unit.

It is not fair to assume that representing the interests of the bargaining unit requires that at the conclusion of the interview the union rep tell everybody what transpired during every aspect of a particular investigation.

The interests of the bargaining unit are served by the fact that other... other employees know that if I'm interrogated by the Inspector General, I'll have a representative there.

They'll be looking out for my interest.

I'll have an opportunity to... to be represented, and I won't get treated unfairly in such a case.

Justice Ginsburg: Mr. Smith, you mentioned NRC, and while you may not agree with that case, I take it that Judge Kravitch thought that the Eleventh Circuit decision was compatible with the NRC decision.

Mr. Smith: That's correct.

The Fourth Circuit held that bargaining on the Weingarten right to enhance it over and above the basic representation right was improper, but the Fourth Circuit noted that its position was consistent with the Third Circuit.

And... and I think Judge Kravitch in the Eleventh Circuit agreed with as much.

If you're looking at sheer numbers now, the Third Circuit, the Eleventh Circuit, and the Fourth Circuit have all agreed with the Authority's rule that an office of Inspector General investigator is a representative of the agency when interviewing a bargaining unit employee.

If there are no other questions...

Justice Ginsburg: The D.C. Circuit seems to think that the NRC case was dispositive of this situation, and according to the Eleventh Circuit, it is not.

Mr. Smith: The D.C. Circuit errs in a number of respects, Judge Ginsburg.

In... in the first place, the D.C. Circuit conflates a case over negotiability with a... with a straight case of the application of the right to have someone present in the room, and we think that's a significant difference.

Building on the Weingarten right is... is different from the simple... simple application of the Weingarten right.

And... and the D.C. Circuit is... is erroneous in that respect and we think that's a salient distinction between the D.C. Circuit, which is out on its own here, and all the other courts of appeal which have reviewed and affirmed the Authority's interpretation in this case.

We think that it is for the Authority to determine the breadth and scope of the term representative of the agency, and that unless the Authority's interpretation is unreasonable or impermissible, that interpretation is due to be affirmed.

We submit to this Court that it is.

Justice Scalia: Mr. Smith, I'd like to revisit with you.

You said there is a trend away from or toward Inspector Generals investigating these types of cases.

Mr. Smith: Yes, sir.

Justice Scalia: Now, isn't that only a part of the story?

Wasn't there a trend some years ago away from internal auditors in agencies?

Mr. Smith: Prior to the passage of the Inspector General?

Justice Kennedy: That's right.

Mr. Smith: It might get before my time, but I'll have to take your word for it.

Chief Justice Rehnquist: Well, not all before your time.

Justice Scalia: For the independent regulatory agencies, wasn't that during the '80's?

Mr. Smith: Well, the Inspector General Act was passed in 1978.

Justice Scalia: Well, there's a separate Inspector Generals act for the smaller agencies.

Chief Justice Rehnquist: Wasn't there then an attitude in Congress that the investigation should not be controlled by the agency heads?

Mr. Smith: I'm not aware of that particular attitude, Your Honor.

I can't...

Chief Justice Rehnquist: Well, that was the attitude.

Mr. Smith: I can't dispute your point.

I'll certainly accept it.

Justice Scalia: The point was, I don't think you can have it both ways.

You can't say that the Inspector General is under the agency head when we know that the purpose was to do just the opposite and to get the investigations from under the agency heads.

Chief Justice Rehnquist: And let me ask you this question.

Justice Scalia: Do you agree that in the old days that the head of the agency could actually direct the auditor's investigation of these matters?

Mr. Smith: Yes.

Justice Scalia: Do you agree that the head of the agency cannot direct the investigation by the IG?

Mr. Smith: The... the legislative history says that if an agency head requested an Inspector General to undertake an audit or an investigation...

Chief Justice Rehnquist: No, that's not what I'm talking about.

Mr. Smith: it is assumed that they would do so.

Chief Justice Rehnquist: No, that's not what I'm talking about.

Justice Scalia: If the IG said, I want to investigate this matter...

Mr. Smith: Yes.

Justice Scalia: can the agency head say, no, you can't?

Mr. Smith: They cannot do so.

Justice Scalia: If the IG said, I want to investigate this matter in this manner, can the agency head say, you cannot?

Mr. Smith: I think so.

I think the agency head...

Justice Breyer: The agency head can tell them that?

Mr. Smith: Yes.

I think the agency head can say to the Inspector General...

Justice Souter: By what authority?

Mr. Smith: I think the authority is you are expected under the IG Act to comply with, quote, other statutes when you perform your investigative function.

Justice Scalia: Well, I don't know where you get that authority.

Justice Kennedy: I think you... that's... you know, that's... that's an interpretation.

Justice Scalia: Doesn't the... doesn't the IG... let's say the... the... the IG and the agency head were at loggerheads about a matter.

To whom would the IG then report this dispute?

Mr. Smith: Well, the IG would have to go to their employing authority if they chose to do so, which would be either, depending on the size of the agency, the agency head or the President of the United States.

Justice Scalia: Isn't it true that the IG has a separate line of communication and separate reporting authority to Congress?

Mr. Smith: Right.

They have... they have the obligation under their statute to file semiannual reports to the Congress.

Justice Scalia: And in reality they have separate reporting authority to Congress.

Mr. Smith: Yes.

Justice Scalia: If they are at loggerheads with the head of the agency.

Mr. Smith: Yes.

Justice Scalia: Do you know of any instance where the agency head has been directed by or the IG has been directed by... an IG has been directed by an agency head to conduct an audit or an investigation in a certain way?

Mr. Smith: Well, in this case, the Authority directed the NASA headquarters to inform the NASA-OIG to comply with the 7114 (a)(2)(B) right in subsequent cases.

Justice Ginsburg: No.

Justice Scalia: Earlier you asked... you said that the agency head can direct an investigation.

Do you know of any instance in which that has happened?

Mr. Smith: Where an agency head has requested an Inspector General to perform an investigation?

Justice Kennedy: No.

Justice Scalia: Where an agency head has said to an... an IG, this is the manner in which I want you to conduct this investigation.

Mr. Smith: We have no... we have no such case, but I think it's fair, Justice Thomas, to conclude that an Inspector General can be told to comply with the law when you conduct an investigation.

The Privacy Act, for example.

It's acknowledged that the Privacy Act must be complied with, a host of criminal and civil laws.

Justice Scalia: Well, you could be told... the IG can be told anything.

I... my question is, can the agency head direct the IG to do what the agency head wants the IG to do or the agency head believes to be the law?

Mr. Smith: In our view, the... the Inspector General can be told by the agency head and/ or the appointing authority, the President of the United States, to comply with the law, yes.

Chief Justice Rehnquist: Okay.

Justice Scalia: Now, do you have any examples of that?

Mr. Smith: The only examples that we would refer to would be the ones I previously mentioned, that in the... in the statute, in the legislative history it's conceded, for example, that the Inspector General must comply with the Privacy Act.

If an Inspector General, in performing an investigative function, was refusing to comply with the Privacy Act, we think it would be appropriate for the agency head to inform the IG to comply.

Failing the IG's compliance, we think the agency head, if they appointed the IG, would remove him or discipline.

If they did not, they would report this to the President of the United States.

Justice Scalia: But you would have to agree... I mean, you can't to a specific provision in the IG Act for that.

But if the agency head agreed with you that the union representative should be in such an interview and the IG said no, you can't point to any provision authorizing the agency head to direct the IG to include a union representative in such a meeting or interview.

Mr. Smith: The IG's position would have to be, in such a case, that the inclusion of a union rep prohibited or precluded me from conducting an investigation because that's the statutory string that we go through to analyze...

Chief Justice Rehnquist: No, but if your argument is, if... if this were my chief of staff who was conducting the... the investigation and I said, look, you are to include the union representative, my chief of staff theoretically as the agency representative would have to do that.

Justice Scalia: But I don't think you can point to any authority where if the head of the agency, the head of NASA, says, look, I'm sensitive to this problem and I want the union representative included in this investigation, and if the IG says, buzz off, I don't know where the... the head of NASA would get the authority to force that or... to force that individual, the IG, to include such an individual.

Mr. Smith: We think the authority...

Justice Scalia: And I'd like you to point to me where that authority is.

Mr. Smith: Well, the... the premise of your question is that it is the agency head that is imposing this requirement on the Inspector General.

Justice Stevens: That's right.

Mr. Smith: We think that's incorrect.

It is the Congress that imposes this requirement on the agency, any representative of the agency conducting the...

Justice Kennedy: But your argument is that this IG reports to the Administrator, and if the Administrator can't direct the IG to do precisely what you think the IG should be doing, then I don't know how you can say that the IG reports to the Administrator.

Mr. Smith: Well, I don't want to... I don't want to butt heads with you.

We think Inspector Generals are not free agents in conducting their investigations...

Justice Stevens: I bet you the agency head does.

Unidentified Justice: [Laughter]

Mr. Smith: In conducting their investigations, they have to comply with the law.

This is but one law.

Argument of Stuart Kirsch

Chief Justice Rehnquist: Thank you, Mr. Smith.

Mr. Kirsch, we'll hear from you.

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

That the OIG investigator was acting here as representative of the agency is manifested in a multitude of activities that actually occurred and is also consistent with the roles and duties and responsibilities under the IG Act.

Here we had an IG investigator at the outset invoke the disciplinary authority of the agency.

This is not a right inherent to the IG, but one that is routinely unleashed... this disciplinary hammer... upon employees to compel their attendance and to assure that they cooperate fully and answer all questions.

This was not an isolated situation in this NASA case.

To review the Second Circuit case and the D.C. Circuit case, agents that were specifically appointed and selected by the OIG, who are not OIG agents since they have the authority to gain further assistance from others within the office, those agents also advise the employees that they must appear or they will face dismissal.

Justice Scalia: Excuse me.

It was my understanding that the OIG could not issue such directives on his own, but can only do so with the authority of... of the agency.

Isn't that right?

I mean, he doesn't have delegated authority from the agency to summon employees.

He has to go to the agency head and say, I'm going to have a hearing, would you make arrangements to have this employee appear.

Am I wrong about that?

Mr. Kirsch: Typically it is correct, I would say, that an agency will instruct the employee to appear before the IG.

The IG apparently implicitly adopts an authority, an apparent authority, because there was nothing in the record here or in any of these cases that it can invoke the disciplinary authority of the agency.

Whether... whether they have that or not, the appearance is certainly clear and they hold themselves out as having the disciplinary authority of the agency.

Moreover, here we have an...

Chief Justice Rehnquist: You say here, Mr. Kirsch.

You're talking about the facts of this particular case.

Mr. Kirsch: Yes.

Chief Justice Rehnquist: And what did happen in that respect here?

Mr. Kirsch: In this case we had a referral from the FBI to the OIG.

The OIG then contacted the... the agency and told them that we have some concerns about the activities of an employee.

Management then issued a letter of discipline to the employee to immediately remove him from the facility and to impose a fitness for duty exam.

Within several days, the OIG sought to set up an interview to be conducted of this employee.

They agreed to allow the employee to have an attorney and a union representative present at the attorney's office in this particular case, and that's when they said that the employee must answer all questions or face dismissal.

Justice Breyer: What is it...

Chief Justice Rehnquist: So, how did this case ever get here if that's what happened?

Answer Justice Breyer's question.

Justice Breyer: Can you give me an example of... if you start with the proposition the head of the agency can tell the IG exactly nothing, nothing that anyone in the audience couldn't tell him, and moreover, he carries out no authority of the agency.

All right.

Now, you're going to say that statement is wrong.

So, can you give me the best examples you can think of of things that the head of the agency could tell the person, not just obey the law.

Any citizen can go to the IG and say, obey the law.

I mean, is there any authority at all that the head of the agency has to tell the IG anything?

Mr. Kirsch: Nothing about specifically that he has to tell...

Justice Breyer: No, I'm not saying...

Mr. Kirsch: But...

Justice Breyer: Does the... does the head of the agency have the authority to do anything whatsoever in respect to the IG...

Mr. Kirsch: Yes.

Justice Breyer: that an ordinary citizen of the United States wouldn't have?

Mr. Kirsch: Yes, and also...

Justice Scalia: What?

Mr. Kirsch: the OIG has duties and responsibilities vis-a-vis the agency head and access to certain information that others outside an agency would not have.

Typically, as we said from the outset, an employee is directed to appear before the OIG who has a physical location at that office.

They have access to all documents and access to the agency head at any time.

They have the right to select, appoint, and employ any official to work with them as part of that OIG investigation.

Moreover, they have the duty and responsibility to recommend corrective action wherever they see fraud, waste, and abuse to the agency head.

So, in a number of respects, there is an interaction between the two.

Justice Breyer: Those are examples of instances in which the IG might have some authority that he wouldn't have were he not part of the agency.

I got that half.

What about the other half?

Is there anything at all that the head of the agency can tell the IG?

Mr. Kirsch: By... by... he can tell him to not assert the disciplinary authority of our agency here to compel the attendance of our employees, if he so chose to do that.

But apparently they don't do that and so they by... by implicitly allowing the IG to go in and exercise that authority of the agency, that compels the attendance of the... of the employees there.

Justice Kennedy: Could the agency head tell the employee directly, now, when the IG calls you, you don't have to go and I won't give you any discipline unless you have the union rep there?

You're entitled to the union rep.

Mr. Kirsch: Yes.

Justice Kennedy: Would that... that would not be an interference with the OIG's authority?

Of course, it depends on the answer in this case, but...

Mr. Kirsch: There's nothing in the OIG act that gives the OIG subpoena power over a particular employee within his agency, and there's nothing that could compel the employee to appear there and to fully cooperate other than disciplinary...

Justice Kennedy: Well, if that's so, then he wasn't entitled to counsel here, was he?

Mr. Kirsch: I'm sorry.

Justice Kennedy: If he was not compelled, he wasn't entitled to counsel in this case.

Mr. Kirsch: If he was not compelled in this particular case, the... the statute says compelled to appear before any agency... then he would be entitled to counsel.

Correct.

Chief Justice Rehnquist: But if he was not compelled, then he was not entitled to counsel.

Mr. Kirsch: Perhaps he may not have been entitled to counsel unless there was a custodial interrogation, a criminal type investigation, or some way otherwise overbearing the will of the individual...

Chief Justice Rehnquist: Well, that would... that would mean that the evidence might not be introduced... introducible in a criminal trial, but that doesn't necessarily mean that he has a right to counsel.

Mr. Kirsch: If he... the statute... you are both correct... indicates where an... where an employee is compelled to appear before the agency.

Now, that compulsion may...

Justice Ginsburg: Mr. Kirsch, I... I would... I had assumed... and please correct me if I'm wrong... that if an employee is told show up at that interview or you lose your job and the employee then says, okay, can we meet in my lawyer's office, that that employee is being compelled to show up at the interview even though he says okay.

But the threat is you lose your job and you're not going to be paid.

Mr. Kirsch: That's exactly our position, that absent an affirmative statement that you don't have to be there, the... the appearance is clear to any employee that their job is in jeopardy for refusal to participate or cooperate fully in an investigation.

And the compulsion exists both... either through the circumstances or the specific statements here.

Moreover here, we have a situation where an agency routinely utilizes the information that's gathered by the... by the investigator for purposes of going forward with the discipline in the case, and often where the IG testifies on behalf of the agency where an employee contests that particular discipline.

The... one statement about the FBI, if I may.

The FBI is specifically excluded under the labor statute from coverage as an agency.

So, the issue would not even apply with respect to the FBI.

Moreover, the FBI has...

Chief Justice Rehnquist: You say it's excluded under the labor statute.

Does that mean that the ability to bargain with management and so forth is not given in the... in the case of the FBI?

Mr. Kirsch: They're explicitly excluded by definition of being an agency and therefore would not be subject to the provisions of the labor statute in any respects.

Chief Justice Rehnquist: So... so that... you say an FBI investigation is by definition not covered by the...

Mr. Kirsch: An exclusive FBI investigation, yes, that would be correct.

The... and as I attempted to take you through the IG Act, as you can see, the only authority of an IG to act for or on behalf of the agency is by virtue of that employee's existence and creation as a vehicle of that agency.

The legislative history says that this IG is to be the strong right arm.

Thank you very much.

Rebuttal of David C. Frederick

Chief Justice Rehnquist: Thank you, Mr. Kirsch.

Mr. Frederick, you have 2 minutes.

Mr. Frederick: Justice Kennedy, I'd like to return to your question about who the IG reports to because Executive Order 12993, which is not cited in the briefs, provides that the President shall engage a process to investigate wrongdoing by an Inspector General.

So, in those instances when the Inspector General and the agency head are at loggerheads, pursuant to this delegated authority, the deputy of the Office of Management and Budget convenes a committee called the President's Committee of Integrity and Efficiency.

The PCIE investigates outside the realm of the agency whether or not the Inspector General has committed any wrongdoing, and pursuant to that process, the agency head is basically taken out of the disciplinary process through the investigation of whether or not the IG has committed wrongdoing.

So, in answer to your earlier question, the IG really reports not only to Congress through those mechanisms created in the Inspector General Act, but also to the President who has the authority to appoint and to remove and to create this mechanism for the discipline of the Inspector General.

That creates a further insulation and independence of the Inspector General in performing its function.

I would also like to point out that the remedy that the FLRA asserts in this case runs against the agency and the agency, therefore, has to be able to have the authority to direct the Inspector General to comply in a certain way.

And that's exactly contrary to the... to the prerequisites of the Inspector General Act which provide for investigative independence on the part of the Inspector General in conducting investigations.

Allowing a union representative in these contexts allows the union representative to serve as an advance beacon of all of those types of questions that an Inspector General might ask not only of the worker who is being investigated, but also of the coworkers, and in the D.C. Circuit case, in which the D.C. Circuit held that a union... that an IG was not a representative, the court there specifically noted the problem where the worker had confided to the union representative having committed a number of crimes and the D.C. Circuit there held that the IG was not the representative.

Chief Justice Rehnquist: Thank you, Mr. Frederick.

The case is submitted.