5th Amendment and The Federal Employee

By on February 16, 2007 in Current Events with 0 Comments

Does a federal employee have a 5th Amendment right to refuse to obey a request to appear and answer questions in connection with an agency administrative interview? This recent case decided by the Federal Circuit demonstrates that an employee may put his job in jeopardy where reliance on the 5th Amendment right against self-incrimination is misplaced. (Curry v. Department of Agriculture, C.A.F.C. No. 2006-3328 (nonprecedential), 2/9/07)

The USDA requested that Curry submit to an interview in connection with an administrative investigation. They informed him that any answers he gave in the administrative inquiry could not be used against him in a criminal case, and that he would be removed if he refused to participate. Going one step further, the Department of Justice granted Curry use immunity (that is, official confirmation that evidence Curry gave would not be used against him in a criminal proceeding). (Opinion p. 3)

Curry refused the directive, apparently relying on the 5th Amendment to do so. (p. 2)

The agency followed through on its threat to remove Curry. He appealed his removal to the Merit Systems Protection Board. The Administrative Judge (affirmed by the full Board) found that Curry’s removal for failure to cooperate in an official investigation was justified—the investigation was administrative, not criminal, and Curry had been granted use immunity; therefore, his 5th Amendment rights were not violated. (Id.)

Curry fared no better with the circuit court, which affirmed the MSPB and sustained Curry’s removal: “Contrary to Mr. Curry’s arguments on appeal, both the immunity he received through the Kalkines warnings…and the use immunity provided to him by the DOJ, were sufficient to protect him…. Thus…the government possesses the power to remove him from his position because he subsequently did not participate in the interview.” (p. 3; citations omitted)

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.