Board Clarifies Standard for Charges of Failure to Cooperate in Absence of Kalkines Warning
On April 17, 2026, the Merit Systems Protection Board (MSPB) issued a decision clarifying its position on when employees can refuse to answer questions from agency investigators without being subject to discipline. Although not precedential, this decision provides employees with current context on the Board’s application of Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973), the seminal court case establishing that federal employees can be compelled to answer questions, even potentially incriminating ones, if they are granted immunity from prosecution and warned that they could be disciplined, even fired, for refusing to answer questions.
Appellant was a Mechanical Engineer with the U.S. Army (“Agency”) who authored technical presentations for the Agency. According to the agency, before technical information is released outside the Agency, it must go through an extensive review process. Here, the agency alleged that the appellant improperly allowed a presentation co-author to present a slight variation of the presentation at a conference without completing the review process. After the conference, an individual reached out to one of the presentation’s co-authors with a question on the presentation. Through raising the question with the Agency, it was determined some of the information shared may have been controlled unclassified information (CUI) and should not have been shared with the public. Thereafter, there was an investigation into the incident initiated by appellant’s third-level supervisor.
Appellant was asked about his availability for an investigative interview. An interview was scheduled for April 28, 2022. At the interview, appellant stopped the interview and instead read a prepared written statement. In this statement, appellant stated “he would not contribute to an ‘informal’ interview based on hearsay and that he had protected rights and would not be subjected to workplace discrimination or harassment.” After appellant’s statement, he was notified that he had an obligation to answer questions and cooperate with the investigation and that the failure to do so could result in discipline including removal from service. After Appellant did not agree to set a new date for the interview, he was directed by his third-level supervisor to cooperate and provide truthful answers, or else be disciplined. Appellant claimed that his third-level supervisor did not have the authority to “impose [his] will” on appellant.
In June 2022, appellant received a proposed removal based on two charges of: (1) failure to cooperate in an agency investigation; and (2) insubordination. Appellant responded to the proposed removal and asserted his action aligned with his Fifth Amendment right to silence. In October 2022, the removal was sustained. Appellant challenged the removal and one of his arguments was that his removal was unlawful because he was not given a Kalkines warning, informing him that he was required to answer or be disciplined, and that his statements could not be used against him in a criminal prosecution. The administrative judge (AJ) reversed appellant’s removal and found the Agency did not prove its specification of failure to cooperate in an investigation because there were no questions posed to appellant at his April 28, 2022 interview. The AJ also held that appellant invoked his Fifth Amendment privilege against self-incrimination and because he was not given a Kalkines warning mooting his privilege against self-incrimination, his removal could not be sustained. The Agency filed a petition for review with the full Board.
After considering the agency’s petition for review, the MSPB held that it could not prove appellant’s “refusal to answer questions by the investigator constitutes a failure to cooperate” during the initial interview, because no questions were asked of appellant. As such, it agreed with the AJ that the first specification of the failure to cooperate charge could not be sustained. Unlike the AJ, though, the Board held that despite its finding that appellant reasonably believed his statements could be used in a criminal investigation against him, appellant did not invoke his Fifth Amendment rights because “[t]he invocation of the right to remain silent must be unequivocal and unambiguous.” See Berghuis v. Thompkins, 560 U.S. 370, 381-82.
On the larger point, the Board sustained the second specification of failure to cooperate and both specifications of insubordination, reversing the AJ’s decision and reimposing the penalty of removal. The Board held that appellant could not be excused from showing up to an interview and allowing the agency to ask a substantive question prior to his invocation of his Fifth Amendment rights. Had he followed that framework, the Board ruled, the Agency could not discipline him for refusing to answer questions. But according to the Board, prior to that proper refusal after a substantive question, the Agency was not yet obligated to provide a Kalkines notice. Because the alleged misconduct (related to refusing to be interviewed) occurred before any incriminating questions were asked, appellant’s removal was sustained by the Board.
Read the Full Opinion: Jones v. Dep’t of the Army
