Why is this case ostensibly so easy?
Judge McKeown writes a published opinion that disposes of the appeal in four pages. Ms. Todios was a salaried employee who visited her husband while she was supposed to be working, and she was convicted of converting federal funds for (among other things) charging her visits to South Dakota to a federally-funded credit card.
Fair enough. That's a crime. I've got no problem with that.
As for her restitution, clearly, she's got to pay back the money she stole. She said that she was doing a five-day "site visit" in South Dakota, when, really, she only spent two hours at the actual site, and the rest of her time visiting her incarcerated husband. Okay. Money back.
But the government also wants her to grant restitution for the "value" of her salaried time. And that calculated "loss" also increases her sentence under the guidelines.
That'd be totally fine with me too. If she was paid hourly. But she's not. She's paid a salary. That's her argument on appeal. That she was paid an annual salary whether she worked one hour a year or three thousand -- indeed, federal wage and hour law requires precisely that -- so there was no "loss" to the "value" of her missed time.
Judge McKeown's opinion, however, says that this argument "strains credulity". But why?
Don't get me wrong. I understand the impulse. We usually do think that "time is money". And I too wouldn't especially like a system where a government employee could sleep on the job and still collect the entirety of her pay.
But -- and I understand this may come as a shock to someone -- that's the system we have.
Take Judge McKeown's law clerks. They're paid a government salary. They're salaried. Imagine that one of them decides that he's not all that psyched about his job any more. So he comes in one day, does 10 minutes of work on a draft opinion -- let's call it U.S. v. Tadios II -- and then closes his door and sleeps at his desk for the rest of the day. Same the next day. Same all week. When Judge McKeown asks him what he'd done that week, he says he's "busting his hump on Tadios II." But then Judge McKeown notices some drool on his desk, and also that the draft opinion only contains three sentences. At which point the law clerk comes clean.
Now, there's no doubt that Judge McKeown's clerk can be fired for that. (And would be.) So when Judge McKeown's opinion cites federal personnel policies that say that sleeping on the job and not doing work constitutes an offense worthy of termination, I totally agree.
But that doesn't answer the question. Which is whether the clerk could be found guilty of "stealing" government time -- which, under Judge McKeown's view, is equivalent to stealing the government's money. As well as if, so convicted, the law clerk would also have to pay for the value of his time.
That's the dispositive issue. And on those points, I think Judge McKeown's opinion is pretty aggressive. And certainly not self-evident.
Plus, how far does this go? Imagine that the law clerk gets all his work done in four hours, and sleeps the rest, but doesn't tell the judge he was sleeping. Under Judge McKeown's analysis, there was a "loss" to the government that the employee stole. But the law clerk did his job. Where's the "loss" -- even if "time is money" -- if the judge expects Opinion X and gets Opinion X because the clerk can do it in half of the expected time.
Look, I understand that Judge McKeown may be upset. Rightly so. And have full authority to fire the guy. For lying. For being lazy. For whatever.
But getting your work done early and then taking it easy? That's a federal offense?! With a "loss" to the government even though you fully satisfied your employer's expectations? Really?
Such a view also seems inconsistent with actual federal law. Because for the four-hour law clerk, I readily admit that you can fire him. But guess what you can't do? Dock his pay. Because he's an exempt employee. Which means, as a matter of law, whether he works one hour, four hours, ten hours, or ten minutes, he gets the exact same amount of pay. As a matter of law.
Which seems somewhat inconsistent with Judge McKeown's view of a "loss" to the government.
Plus, again, where does Judge McKeown's argument stop? Imagine that a law clerk works ten hours on Todio II one day, but tells the judge that he worked twelve. Is that two hours of an actionable loss to the government?! He lied, after all. That was two more hours of work that he said he did -- that he could have been working on other drafts, or working harder on this one -- and didn't. If it's the lie (on a timesheet or otherwise) that results in the offense, or at least a lie plus time-is-money, then Judge McKeown has to say that's an actionable loss as well. Yet that'd seem shocking to me. Especially since federal law says that the clerk -- just like Ms. Todios -- gets $X salary whether she works one hour, eight hours, or twelve.
I'd have liked Judge McKeown's opinion to explore these problems. But it instead just says that it's fairly self-evident that we've got to count time as money and that, otherwise, government employees could sleep on the job and we could do nothing about. Since we could do something about it -- fire them, as indeed transpired here. But, even if we caught them, the one thing we couldn't do is to dock their pay. Yet the Ninth Circuit nonetheless call it a "loss" subject to restitution and a sentencing enhancement. That facially seems a problem to me.
Plus, is this opinion really consistent with workplace realities? Imagine the clerk writes down that he worked eight hours. But, really, he was checking ESPN and going to the bathroom for 15 minutes in that period. Federal offense?! Restitution for that time?! It's a lie, after all. And time is money.
Finally, I'm not even sure that all of this is even necessary to resolve the present case. Ms. Todios appears to have taken off five days of work and only spent two hours on the site visit. Federal law says that a salaried employee gets fully paid if she works even a single minute in one day. So on the one day (presumably) that Ms. Todios did the site visit, maybe we don't count a "loss" for that day. But the other four days, when she did nothing, she could be docked for those days. That's a loss for which restitution clearly (at least in my view) could be ordered.
And, don't forget, we're not talking about whether Ms. Todios gets off. She used a government card for personal expenses. She's going away. She'll have to pay restitution.
The only question is whether she also has to pay for the "value" of her partial days.
Judge McKeown says that it strains credulity to say that she shouldn't have to.
Of that I'm not so sure.