MSPB: Agencies Not Required to Provide Prosecutor-Backed Immunity in Most Employment Investigations

This case law update was written by Emily A. Shandruk, an Associate Attorney at the law firm of Shaw Bransford & Roth, where she joined in January 2024. Ms. Shandruk contributes her extensive experience in state and federal litigation to the firm, showcasing her prowess in authoring dispositive motions and coordinating discovery in complex federal litigation.

Last month, the Merit Systems Protection Board (“MSPB” or “Board”) upheld the removal of a Department of Homeland Security (“DHS”) Immigration Enforcement Agent for failure to cooperate in an official investigation. In reaching this decision, the Board affirmed that in most cases, a Federal employee receives adequate notice of immunity if an agency provides notice of immunity consistent with Kalkines. The Board clarified that a declination of prosecution from the Department of Justice (“DOJ”) is not necessary when an agency issues a notice of immunity because such notice is sufficient to bind the Government. The Board’s decision is consistent with, and confirms the lawfulness of, agencies’ historical practice of not providing a declination of prosecution in most employment-related investigations.

Appellant, an Immigration Enforcement Agent, was investigated by DHS’s Office of Professional Responsibility concerning allegations of “disreputable associations and illicit activities.” DHS directed Appellant to appear for an interview and answer all relevant questions. DHS also notified him that failure to do so could result in disciplinary action including his removal. The notice further stated that the information he provided in the interview could not be used against him in a criminal prosecution.

After Appellant’s interview, DHS proposed his removal and alleged that in his interview, he refused to candidly answer questions about an incident with law enforcement in Mexico and abruptly terminated the interview before it had concluded. Appellant filed a Board appeal challenging his removal. Therein, he argued that DHS could not discipline him for failing to “answer questions with criminal implications absent a ‘declination to prosecute’ from the Department of Justice (DOJ).” After a hearing, the administrative judge sustained Appellant’s removal and he then filed a petition for review.

On January 10, 2024, the Board upheld Appellant’s removal and found that his removal did not violate his Fifth Amendment due process rights. While the Board agreed with the administrative judge’s findings that Appellant refused to cooperate in his investigation, the Board determined that the primary issue in his appeal is “what constitutes ‘adequate’ notice of immunity.”

The Board first turned its attention to the intersection between a federal employee’s Fifth Amendment rights and the Government’s authority to remove its employees. Under the Fifth Amendment, “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” It follows that the Government may not use statements in a criminal proceeding that it obtained from a Federal employee under threat of removal.

The Board acknowledged that the Fifth Amendment prohibits the Government from removing a Federal employee from office for refusing to provide statements that may be used against him in a criminal proceeding. However, the Board then pointed to Supreme Court precedent holding that a federal employee may be removed if he “refuses to account for his performance of his public trust, after proper proceedings, which do not involve an attempt to coerce him to relinquish his constitutional rights.”

The Board next discussed the Federal Circuit’s holding in Kalkines v. United States, which lays out the test for determining whether a Federal employee received adequate assurance of immunity. The Board stated that under Kalkines, the Government must give a Federal employee adequate notice that (a) he is subject to removal for not answering questions in an investigation; and (b) the information he provides in an investigation cannot be used against him in a criminal proceeding.

With this framework in mind, the Board determined that DHS gave Appellant adequate assurance of immunity when it provided notice, consistent with Kalkines, that his failure to respond to questions in the interview could result in administrative discipline, including removal, and that the information provided in the interview could not be used against him in a criminal proceeding. Because such notice does not require assent from DOJ, the Board reasoned that it is not free to impose additional requirements beyond those set forth by the Federal Circuit.

Moreover, the Board also explicitly held that the assurance of immunity Appellant received in the notice is sufficient to bind the Government. Thus, a declination of prosecution or other assent from DOJ is unnecessary. In support thereof, the Board cited to Supreme Court and Federal Circuit precedent holding that an employee may be removed for failure to cooperate with an investigation when an agency provides a prospective grant of immunity (meaning, immunity for testimony to be provided in the future).

The Board’s determination that issuing a notice of immunity without a DOJ declination of prosecution affirms the lawfulness of a decades-long practice of many agencies.

The Board noted that in some circumstances, an agency’s prospective grant of immunity is not sufficient to compel testimony. The Board pointed to Title II of the Organized Crime Control Act of 1970, under which an agency must provide a formal grant of immunity, with approval by the Attorney General, to compel testimony in certain proceedings. The Board determined that Appellant was not covered under this provision and this provision likely does not apply to any employment-related investigation.

The Board concluded that it joins “numerous courts in holding that a Government employee is not entitled to formal immunity before being compelled to answer his employer's questions.” Because Appellant was adequately assured of his immunity and the consequences of remaining silent (in this case, refusing to answer questions) in his interview, the Board affirmed his removal.

Read the full Opinion and Order here: https://www.mspb.gov/decisions/precedential/Luna_SergioDA-0752-15-0498-I-1_Opinion_and_Order.pdf