5th Amendment and The Federal Employee
By Susan Smith
Friday, February 16, 2007
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)
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