U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Department of Justice and Office of Inspector General, Department of Justice v. FLRA, 266 F.3d 778 (D.C. Cir. 2001).

The D.C. Circuit, interpreting and applying the Supreme Court's decision in NASA v. FLRA, 527 U.S. 229 (1999), upheld the Authority's decision, in 56 FLRA No. 87, that the Department of Justice's Office of Inspector General (OIG) violated the Weingarten rule when a bargaining unit employee's request for union representation was refused. The court rejected the agency's contention that the OIG is not a "representative of the agency" when conducting a criminal investigation.

Upon receiving a report that an employee at a correctional institution was smuggling drugs into the facility, agents with the Department of Justice's Office of Inspector General (OIG) conducted a criminal investigation. When the employee asked for union representation, the request was denied. Subsequently the prison warden informed the employee that the investigation was being terminated because the allegations weren't substantiated.

Meanwhile, the union filed a ULP charge claiming that the OIG agents' denial of the employee's request for union representation violated section 7114(a)(2)(B). A complaint followed and the ALJ granted summary judgment, to which the agency filed exceptions. In adopting the ALJ's decision and order, FLRA rejected the agency's contention that section 7114(a)(2)(B) didn't apply to criminal investigations by OIG agents. The agency appealed FLRA's decision to the D.C. Circuit.

In its arguments the agency first noted that section 4(d) of the Inspector General statute requires the OIG agent to "report expeditiously to the Attorney General whenever the Inspector General has reasonable grounds to believe there has been a violation of Federal criminal law." This implied, the agency argued, that an OIG agent isn't a "representative of the agency" (for the purposes of § 7114(a)(2)(B)) when conducting a criminal investigation, but instead answers to the Attorney General. In rejecting this argument, the court said the following

[N]othing in § 4(d) overrides 5 U.S.C. App. § 3(a), which requires that each Inspector General shall "report to and be under the general supervision of the head of the establishment involved. . . ." The [Supreme Court] relied at least in part on this provision in holding that OIG agents are "representatives" of their respective agencies. 527 U.S. at 239. Section 4(d)'s extra reporting requirement does not extract OIG agents from the organizational spot that is assigned them by § 3(a) -- under the head of the relevant agency.

Thus the Department's effort at a statutory distinction between criminal and administrative investigations fails.

The agency also claimed that the Supreme Court's decision in NASA v. FLRA, 527 U.S. 229 (1999), doesn't apply to criminal investigations. That decision, the agency argued, rested on factors peculiar to administrative investigations. The Court, moreover, had said that it wasn't deciding the applicability of § 7114(a)(2)(B) to "law enforcement officials with a broader charge." And, finally, the agency argued that the application of § 7114(a)(2)(B) to criminal investigations was "unworkable." The D.C. Circuit rejected all these arguments.

In rejecting, for example, the agency's claim that since an employee has a right to an attorney in a criminal investigation, he or she didn't need a union representative, the court noted that section 7114(a)(2)(B) also implicates a union's rights. "In fact," the court continued, "we've already rejected a suggestion that an interrogatee's right to counsel could render § 7114(a)(2)(B) inapplicable. American Federation of Government Employees, Local 1941, AFL-CIO v. FLRA, 837 F.2d 495, 499 n. 5 (D.C. Cir. 1988)."

Nor did the court think the Supreme Court's reference to "law enforcement officials with a broader charge" applied to OIG agents when conducting a criminal investigation.

[T]he reference doesn't appear to address OIG agents at all. In the previous sentence the Court mentioned the concern that applying § 7114(a)(2)(B) to the OIG might hinder "joint or independent FBI investigations of federal employees." Id. Thus the later reference to "law enforcement officials" clearly means "FBI officials" or the like, not an agency's OIG officials pursuing a criminal investigation on their own. As was true for the Court in NASA, we need not address the possible application of § 7114(a)(2)(B) to a joint OIG/FBI investigation.

Nor did the court find the agency's "workability" claims persuasive. On the one hand, the agency said that the union representative might be called to testify at a trial, thus working against the employee's true interests. But, said the court, "where an administrative investigation turns out to uncover criminality, the union representative may equally be called to testify." The court went on to note that where an employee is concerned about the possible testimony of the union representative, "he can simply decide not to ask for one."

The agency also argued--"perhaps inconsistently," the court noted--that application of the Weingarten right might impede criminal investigations. The court had no doubt that there were such risks, but it was a risk that also applied to administrative investigations, "risks," the court continued, "that the [Supreme] Court regarded as 'not weighty enough to justify a nontextual construction of § 7114(a)(2)(B) rejected by the Authority.' NASA, 527 U.S. at 243-44."

Finally, the agency's attempt to distinguish between criminal and administrative investigations wasn't free of workability problems. Many investigations, the court noted, have both administrative and criminal potential and how the investigation is classified depends on the ongoing flow of information. At what point, the court asked, would the investigation become subject to Weingarten? "When the agent--to some extent independently--decided to treat it administratively? What if he had viewed the matter as unclassified, and interviewed the employee in part in order to decide on the classification? Such possibilities," the court concluded in affirming FLRA's order, "erode the likelihood of any bright-line distinction between administrative and criminal investigations."