Miller v. DOJ , 842 F.3d 1252 ( 2016 )

United States Court of Appeals
for the Federal Circuit
______________________
TROY W. MILLER,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2015-3149
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-1221-11-0401-W-3.
______________________
Decided: December 2, 2016
______________________
DENNIS L. FRIEDMAN, Philadelphia, PA, argued for pe-
titioner.
ROBERT NORWAY, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR, ALLISON
KIDD-MILLER.
______________________
2 MILLER v. DOJ
Before REYNA, HUGHES, and STOLL, Circuit Judges.
Opinion for the court filed by Circuit Judge STOLL.
Concurring opinion filed by Circuit Judge REYNA.
Dissenting opinion filed by Circuit Judge HUGHES.
STOLL, Circuit Judge.
Troy Miller appeals the decision of the Merit Systems
Protection Board denying him relief for a personnel action
taken by the Department of Justice. The Board held that
Mr. Miller met his burden of showing that certain disclo-
sures he made, found by the Board to be protected under
the Whistleblower Protection Act, contributed to his
reassignment. The Board further held, however, that the
Government successfully rebutted Mr. Miller’s prima facie
case by showing independent causation for the personnel
action. Because the Board’s decision is not supported by
substantial evidence, we reverse.
BACKGROUND
I.
Mr. Miller worked as the Superintendent of Indus-
tries, level GS-13, at the Federal Correctional Complex,
Beaumont, Texas. In this capacity, Mr. Miller oversaw a
prison factory that produced ballistic helmets primarily
for military use. He held significant responsibilities as
Superintendent of Industries, including: managing the
factory budget; executing contracts with outside suppliers;
hiring, training, and overseeing inmate staff; and develop-
ing and maintaining production schedules. Performance
reviews lauded Mr. Miller for taking the initiative to
coordinate delivery schedules with outside vendors—a
task normally performed by central office professionals—
and for spearheading a business partnership with an
outside armor outfitter.
MILLER v. DOJ 3
UNICOR, a Government-owned corporation, operated
the prison factory, but Mr. Miller worked for the Federal
Bureau of Prisons within the Department of Justice, as
did his direct supervisor, prison warden Jody Upton.
Mr. Miller, along with the associate warden and the
warden’s captain, served on Warden Upton’s executive
staff. As a member of the Warden’s executive staff,
Mr. Miller drafted prison security reports sent to the
regional office and responded to security incidents at the
Beaumont facility, as well as other correctional facilities.
He was also on rotation every six weeks to serve as the
prison’s acting administrative duty officer and he chaired
the Inmate Issues Committee, where he was a conduit
between inmates and Warden Upton, relaying inmate
concerns to the warden and providing the warden’s feed-
back to the inmates. In Warden Upton’s absence,
Mr. Miller occasionally filled in as an associate warden.
Reflecting on Mr. Miller during his testimony in this case,
Warden Upton described Mr. Miller as “a fantastic em-
ployee” who was “very on top of things” and with whom he
had “absolutely no concerns,” a sentiment reflected in
Warden Upton’s performance evaluations of Mr. Miller.
J.A. 90–92.
On October 7, 2009, Mr. Miller disclosed to individu-
als at UNICOR and to Warden Upton what he perceived
to be mismanagement of funds at the factory. War-
den Upton testified that he received a phone call in mid-
to late-October 2009 from the DOJ Office of Inspector
General (“OIG”) explaining that there had been reports of
impropriety at the factory, but Warden Upton could not
recall with whom at OIG he spoke. On December 15,
2009, OIG conducted an on-site visit to the factory as part
of an investigation into the factory’s operations and
purported misconduct. Warden Upton asked Mr. Miller to
not report to the factory on that day, relaying to him that
the investigators did not want the factory staff to feel
4 MILLER v. DOJ
uncomfortable or intimidated by having their supervisor,
Mr. Miller, present during the OIG visit.
On December 16, 2009, the day following OIG’s facto-
ry visit, Mr. Miller reported to Warden Upton and others
that there had been a “sabotage” at the factory, with
rejected Kevlar® material having been placed on the
production line. J.A. 162. Mr. Miller testified that con-
structing a helmet using rejected material would seriously
compromise the helmet’s ability to withstand projectile
impact and thus would endanger the lives of soldiers
outfitted in such helmets. Mr. Miller testified that “why I
did what I did is there’s a U.S. Marine’s life at the end of
this helmet, period. And it is my responsibility as a
superintendent of industries when I see anything that is
wrong, to report it immediately and to stop production.”
J.A. 276. Mr. Miller urged that the factory be closed
pending an investigation of the alleged factory sabotage.
Several hours after the sabotage disclosure, War-
den Upton informed Mr. Miller that he was being reas-
signed from the factory and would no longer serve as
Superintendent of Industries. Without identifying any
specific individual, Warden Upton testified that some
person or persons working for OIG had directed him to
reassign Mr. Miller. OIG had become concerned, testified
Warden Upton, that Mr. Miller might compromise its
investigation by remaining at the factory. Warden Upton
testified that because Mr. Miller did not “technically work
for me in the operational aspect, I contacted UNICOR’s
central office, as well as my regional director” and “[a]
decision was made the following day that [Mr. Miller]
would need to be removed from the factory.” J.A. 101.
Warden Upton further testified that, at some point later,
OIG “made it clear that Mr. Miller was actually one of the
subjects of the investigation,” although he could not recall
during his testimony when OIG disclosed this information
to him. J.A. 99.
MILLER v. DOJ 5
Over the next four and a half years, Mr. Miller was
assigned to various lower-level positions which, unlike the
Superintendent of Industries position, were not on the
Warden’s executive staff. 1 Mr. Miller’s various duties,
during the times when he was assigned work, included:
monitoring inmate phone calls for criminal activity;
assisting with the prison’s food service by wiping tables
and observing inmates as they cleaned floors; performing
clerical work, such as shredding documents; and working
the night shift in the special housing unit. 2 War-
den Upton testified that he moved Mr. Miller from one
assignment to the next several times at the behest of OIG.
Warden Upton testified that OIG began to fear that
placing Mr. Miller in any position with inmate exposure
presented a threat to the investigation. For example,
Warden Upton testified that OIG believed Mr. Miller had
been conversing with inmates during his food service
detail and that Mr. Miller chose to monitor the phone
calls of inmates who worked in the factory during his
phone detail, which the Warden’s staff was able to find
some supporting correlative evidence of by examining
phone records. Warden Upton again did not reveal the
identity of any specific OIG employee with whom he spoke
1 Warden Upton testified that the prison helmet
factory closed somewhere between August and September
2011, nearly two years after Mr. Miller was initially
reassigned out of the helmet factory. Mr. Miller received
notification that he was being permanently reassigned
from the Superintendent of Industries position to the
position of Camp Administrator because of the factory
closing.
2 Mr. Miller testified that the night shift was not
desirable, and that he had not previously worked in the
special housing unit.
6 MILLER v. DOJ
or provide OIG’s specific justification for fearing that
Mr. Miller would threaten the investigation.
Eventually, Warden Upton reassigned Mr. Miller out
of the medium-security prison facility altogether and to
an administrative building on the prison premises. While
there, Mr. Miller was told to sit on a couch in the building
lobby without being given any work to perform, which he
did for eight months. He later received an office, but
continued to have no work assigned to him. He remained
on the GS-13 payscale all the while, yet Warden Upton
testified that putting him in these positions was “abso-
lutely” a waste of his talents.
II.
Mr. Miller brought an individual right of action
(“IRA”) appeal to the Board, alleging that the DOJ’s
actions against him violated the Whistleblower Protection
Act (“WPA”). Particularly, Mr. Miller asserted that he
made protected whistleblower disclosures under 5 U.S.C.
§ 2302(b)(8) and that they contributed to his effective
reassignment out of the Superintendent of Industries
position, which he contended was a personnel action
under 5 U.S.C. § 2302(a)(2)(A). Mr. Miller claimed as
protected his October 2009 fund-mismanagement disclo-
sure and his December 2009 factory-sabotage disclosure.
The Administrative Judge agreed with Mr. Miller that
both his October 2009 and December 2009 disclosures
were protected under § 2302(b)(8). The A.J. also found
that, applying the 5 U.S.C. § 1221(e)(1) “knowledge/
timing” test, Mr. Miller’s disclosures contributed to his
reassignment, which the A.J. found to be a personnel
action under § 2302(a)(2)(A). Because the A.J. found that
Mr. Miller made a protected disclosure and suffered an
adverse personnel action, the burden shifted to the Gov-
ernment to show by clear and convincing evidence that it
would have reassigned Mr. Miller regardless of his pro-
tected disclosures. The A.J. found that the Government
MILLER v. DOJ 7
met this burden. The A.J. relied almost entirely on
testimony from Warden Upton in reaching this finding.
The Government had also presented one of Mr. Miller’s
supervisors at UNICOR, Brad Beus, as a witness, but the
Government presented no testimony or documentary
evidence from OIG, the group Warden Upton testified
directed him to reassign Mr. Miller.
Mr. Miller petitioned the full Board for review of the
A.J.’s decision. The Board affirmed the A.J.’s initial
decision, and it became the Board’s final decision.
Mr. Miller appeals to us, and we have jurisdiction under 5
U.S.C. § 7703(a)(1), (b)(1).
DISCUSSION
I.
IRA appeals brought under the WPA operate in a
burden-shifting framework. The burden lies with the
employee to show “by a preponderance of the evidence
that he or she made a protected disclosure under
§ 2302(b)(8) that was a contributing factor to the employ-
ee’s [personnel action].” Whitmore v. Dep’t of Labor, 680
F.3d 1353, 1367 (Fed. Cir. 2012) (citing 5 U.S.C.
§ 1221(e)). “If the employee establishes this prima facie
case of reprisal for whistleblowing, the burden of persua-
sion shifts to the agency to show by clear and convincing
evidence that it would have taken ‘the same personnel
action in the absence of such disclosure,’” id. (quoting
§ 1221(e)), which we sometimes refer to as a showing of
“independent causation,” see, e.g., Kewley v. Department of
Health & Human Services, 153 F.3d 1357, 1364 (Fed. Cir.
1998).
In evaluating whether the Government has success-
fully rebutted an employee’s prima facie case by demon-
strating independent causation, this court has approved
of the use of three, albeit nonexclusive, factors described
8 MILLER v. DOJ
in Carr v. Social Security Administration, 185 F.3d 1318,
1323 (Fed. Cir. 1999):
[1] the strength of the agency’s evidence in sup-
port of its personnel action; [2] the existence and
strength of any motive to retaliate on the part of
the agency officials who were involved in the deci-
sion; and [3] any evidence that the agency takes
similar actions against employees who are not
whistleblowers but who are otherwise similarly
situated.
But, “[t]o be clear, Carr does not impose an affirmative
burden on the agency to produce evidence with respect to
each and every one of the three Carr factors to weigh
them each individually in the agency’s favor.” Whitmore,
680 F.3d at 1374. Rather, “[t]he factors are merely ap-
propriate and pertinent considerations for determining
whether the agency carries its burden of proving by clear
and convincing evidence that the same action would have
been taken absent the whistleblowing.” Id.By statute, we set aside the judgment of the Board if
the decision is “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c); see also
Whitmore, 680 F.3d at 1366.
II.
The Government does not dispute the Board’s thresh-
old determination that Mr. Miller made a prima facie
showing that his disclosures were WPA-protected and
that they contributed to his reassignment. Thus, the
burden shifted to the Government to show independent
causation. The issue before us is whether substantial
evidence supports the Board’s determination that the
MILLER v. DOJ 9
Government showed independent causation by clear and
convincing evidence. We conclude that it does not.
A. Burden of Proof and Standard of Review
Independent causation is established upon clear and
convincing evidence. “‘Clear and convincing’ evidence has
been described as evidence which produces in the mind of
the trier of fact an abiding conviction that the truth of a
factual contention is ‘highly probable.’” Price v. Symsek,
988 F.2d 1187, 1191 (Fed. Cir. 1993) (quoting Buildex,
Inc. v. Kason Indus., Inc., 849 F.2d 1461, 1463 (Fed. Cir.
1988)); see also Colorado v. New Mexico, 467 U.S. 310, 316
(1983). The clear and convincing burden of proof “imposes
a heavier burden upon a litigant than that imposed by
requiring proof by preponderant evidence but a somewhat
lighter burden than that imposed by requiring proof
beyond a reasonable doubt.” Id. (citing Buildex, 849 F.2d
at 1463).
We have explained before that “there is no doubt that
Congress considered it very important that federal agen-
cies be required to clearly and convincingly rebut a prima
facie case of whistleblower retaliation,” while quoting
legislative history that describes the significance of the
Government’s burden:
“Clear and convincing evidence” is a high burden
of proof for the Government to bear. It is intended
as such for two reasons. First, this burden of
proof comes into play only if the employee has es-
tablished by a preponderance of the evidence that
the whistleblowing was a contributing factor in
the action—in other words, that the agency action
was “tainted.” Second, this heightened burden of
proof required of the agency also recognizes that
when it comes to proving the basis for an agency’s
decision, the agency controls most of the cards—
the drafting of the documents supporting the deci-
sion, the testimony of witnesses who participated
10 MILLER v. DOJ
in the decision, and the records that could docu-
ment whether similar personnel actions have been
taken in other cases. In these circumstances, it is
entirely appropriate that the agency bear a heavy
burden to justify its actions.
Whitmore, 680 F.3d at 1367 (quoting 135 Cong. Rec.
H747–48 (daily ed. Mar. 21, 1989) (explanatory statement
on Senate Amendment to S. 20)).
We review the Board’s finding of independent causa-
tion for substantial evidence. Kewley, 153 F.3d at 1364.
“Substantial evidence . . . means such relevant evidence
as a reasonable mind might accept as adequate to support
a conclusion.” Consol. Edison Co. of N.Y. v. NLRB, 305
U.S. 197, 229 (1938). “The substantiality of evidence
must take into account whatever in the record fairly
detracts from its weight.” Jacobs v. Dep’t of Justice, 35
F.3d 1543, 1546 (Fed. Cir. 1994) (quoting Universal
Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). “Any
determination by an AJ that is based on findings made in
the abstract and independent of the evidence which fairly
detracts from his or her conclusions is unreasonable and,
as such, is not supported by substantial evidence.”
Whitmore, 680 F.3d at 1376.
This court’s prior opinions recognize the interrelated-
ness of the burden of proof a party must satisfy to win its
case—here, clear and convincing evidence—and our
standard of appellate review—substantial evidence in this
instance. The burden of proof a party faces necessarily
impacts our review on appeal:
Substantial evidence is not a fixed quantum of ev-
idence: What is or is not substantial may only be
determined with respect to the burden of proof
that the litigant bore in the trial court. “For ex-
ample, in reviewing whether the evidence sup-
ports a finding of fact . . . the decision might be
affirmed if the standard of proof below were
MILLER v. DOJ 11
‘weight of evidence’ and might be reversed on the
same record if the standard of proof were ‘clear
and convincing’ evidence.”
Eli Lilly & Co. v. Aradigm Corp., 376 F.3d 1352, 1363
(Fed. Cir. 2004) (omission in original) (quoting SSIH
Equip. S.A. v. U.S. Int’l Trade Comm’n, 718 F.2d 365, 383
(Fed. Cir. 1983) (Nies, J., additional comments)); see also
Jackson v. Veterans Admin., 768 F.2d 1325, 1330 & n.5
(Fed. Cir. 1985). Indeed, our prior WPA decisions consist-
ently describe the clear and convincing evidentiary bur-
den as embedded within our substantial evidence
appellate review. See, e.g., Greenspan v. Dep’t of Veterans
Affairs, 464 F.3d 1297, 1306 (Fed. Cir. 2006) (“We have
not been shown substantial evidence in support of the
agency’s burden to establish by clear and convincing
evidence that it would have taken these disciplinary
actions absent the protected disclosures.” (emphases
added)). 3
3 See also Briley v. Nat’l Archives & Records Ad-
min., 236 F.3d 1373, 1381 (Fed. Cir. 2001); Agoranos v.
Dep’t of Justice, 602 F. App’x 795, 805 (Fed. Cir. 2015);
Losada v. Dep’t of Def., 601 F. App’x 940, 943 (Fed. Cir.
2015); Cassidy v. Dep’t of Justice, 581 F. App’x 846, 847
(Fed. Cir. 2014); McCarthy v. Int’l Boundary & Water
Comm’n, 497 F. App’x 4, 14 (Fed. Cir. 2012); Porzillo v.
Dep’t of Health & Human Servs., 369 F. App’x 123, 127
(Fed. Cir. 2010); Wadhwa v. Dep’t of Veterans Affairs, 353
F. App’x 435, 438 (Fed. Cir. 2009); Pedeleose v. Dep’t of
Def., 343 F. App’x 605, 609–10 (Fed. Cir. 2009); King v.
Dep’t of Veterans Affairs, 276 F. App’x 996, 998 (Fed. Cir.
2008); Dennis v. Dep’t of Veterans Affairs, 191 F. App’x
961, 964 (Fed. Cir. 2006); Tomei v. Dep’t of Educ., 113
F. App’x 920, 923 (Fed. Cir. 2004); Kraushaar v. Dep’t of
Agric., 60 F. App’x 295, 298 (Fed. Cir. 2003); Meyers v.
12 MILLER v. DOJ
B. Carr Factor Analysis
With this background in mind, we review the Board’s
analysis of the Carr factors.
The first Carr factor is “the strength of the agency’s
evidence in support of its personnel action.” Carr, 185
F.3d at 1323. We do not focus our review of this Carr
factor on whether the agency has put forward some evi-
dence purporting to show independent causation, but
instead we focus on whether such evidence is strong. See
id. at 1323–24. The Board in this case relied nearly
exclusively on Warden Upton’s testimony to conclude that
this factor weighed in the Government’s favor. A consid-
erable amount of the relied-on testimony consisted of
Warden Upton’s recollection of things OIG told him. We
hold that no reasonable factfinder could find War-
den Upton’s conclusory testimony about how OIG directed
him to be strong evidence of independent causation. 4
Thus, this Carr factor could not favor the Government as
the Board concluded.
Dep’t of Veterans Affairs, 33 F. App’x 523, 527 (Fed. Cir.
2002); Maston v. Dep’t of Justice, 10 F. App’x 937, 942
(Fed. Cir. 2001); Beadling v. Dep’t of Justice, 4 F. App’x
798, 801 (Fed. Cir. 2001); Gray v. Dep’t of Interior, 250
F.3d 763 (Fed. Cir. 2000) (non-precedential); Bristow v.
Dep’t of Army, 232 F.3d 908 (Fed. Cir. 2000) (non-
precedential).
4 The parties disagree as to whether such testimony
constitutes hearsay or, rather, whether it falls within a
hearsay exception. We find that resolving this dispute
bears little on the ultimate issue. Hearsay may be admit-
ted as preponderant evidence in Board proceedings “if, to
a reasonable mind, the circumstances are such as to lend
it credence.” Kewley, 153 F.3d at 1364.
MILLER v. DOJ 13
The Government and the dissent rely on three pieces
of allegedly substantial evidence of a strong showing of
independent causation: (1) Warden Upton’s testimony
that he took action because OIG told him Mr. Miller
might interfere with the investigation; (2) Mr. Miller’s
testimony that Warden Upton told him that OIG told the
Warden to reassign Mr. Miller; and (3) Warden Upton’s
testimony that he continued to reassign Mr. Miller be-
cause OIG told him that Mr. Miller was interfering with
the investigation. Dissent 3–4. But Warden Upton’s
conclusory testimony about OIG’s statements is not made
more sufficient or clear and convincing simply by being
repeated several times. Indeed, this evidence all collapses
into essentially supporting the same basic conclusion—
OIG told Warden Upton to reassign Mr. Miller because he
might interfere with the investigation. The Government’s
evidence is weak, particularly when considered in light of
the record evidence endorsing Mr. Miller’s character.
The Government introduced no evidence to explain
how Mr. Miller, whose second protected disclosure related
to the OIG investigation, could either compromise or be a
target of an investigation into the very type of activities
that he reported. To the contrary, the only evidence
regarding Mr. Miller’s character was his “outstanding”
performance review and Warden Upton’s testimony that
Mr. Miller was “a fantastic employee” who was “confident,
organized, . . . [and] very on top of things.” J.A. 90–92.
Warden Upton further testified that Mr. Miller “[w]as
willing to do anything that you asked him to do” and that
he “sought out additional duties.” Warden Upton testified
that he had “absolutely no concerns” about Mr. Miller, “a
very good employee” who served on his executive staff,
and Warden Upton testified that he had no reason to
place him under investigation. Id. To reach the conclu-
sion the Government suggests—that OIG directed the
reassignment of Mr. Miller to various menial jobs and
ultimately the couch for four and a half years for fear that
14 MILLER v. DOJ
he would interfere with an investigation allegedly target-
ing him—a reasonable fact finder would have to conclude
that Mr. Miller made his protected disclosures of mis-
management as part of a cover-up. The record is devoid of
any evidence supporting such a theory. To the contrary,
the record demonstrates that Mr. Miller was a twenty-
one-year employee of the Federal Bureau of Prisons and
former U.S. Marine who was concerned about the quality
of the advanced combat helmets manufactured by the
prison factory. The record further demonstrates that
Mr. Miller was a valued executive, whose expertise and
attention to detail made his product line one of the most
successful in the Agency.
Warden Upton’s testimony was the only evidence
supporting the seemingly unusual basis for Mr. Miller’s
four-and-a-half year reassignment following his protected
disclosures. Yet the Warden could not testify as to signif-
icant details, such as who at OIG he communicated with.
The Government failed to present any other witness
testimony to support its argument that Mr. Miller was
removed out of concern that he might somehow interfere
with the OIG investigation. Mr. Beus—who was
Mr. Miller’s supervisor at the Government-owned corpo-
ration that operated the factory, UNICOR—was the
Government’s only other witness and he did not corrobo-
rate Warden Upton’s testimony. While Mr. Beus testified
about Mr. Miller’s protected disclosures and the OIG
investigation generally, his only testimony regarding
Mr. Miller’s reassignment was that he had no input into
the reassignment decision. J.A. 501–02 (“Q: Okay. So
did you have any input in Mr. Miller being removed from
his position as [Superintendent of Industries] on that day?
A: No.”). He did not testify as to who made the reas-
signment decision or for what reason.
The Government also failed to present any documen-
tary evidence supporting its position. Mr. Miller was
repeatedly reassigned over the course of a four-and-a-half
MILLER v. DOJ 15
year period, and for each step, the Government did not
present a single email, memorandum, or personnel action
form documenting or providing the bases for the agency’s
action. Common sense tells us that these repeated reas-
signments, occurring over a significant span of time, are
the types of personnel actions for which papers would
normally attach.
To be clear, we do not hold today that testimony must
be corroborated to support a showing of independent
causation, although that is one of potentially many ways
that the Government could have made its weak eviden-
tiary showing stronger in this case. Likewise, we do not
accept Mr. Miller’s invitation to view Warden Upton’s
testimony as not credible. See Chambers v. Dep’t of
Interior, 515 F.3d 1362, 1370 (Fed. Cir. 2008) (holding the
Board’s “credibility determinations are ‘virtually unre-
viewable’ at this level” (quoting Hambsch v. Dep’t of
Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986))). But even
taking the Warden’s testimony at face value, we conclude
that his bare testimony about what OIG directed him to
do affords only minimal support for Mr. Miller’s removal
when considered in light of the remainder of the record in
this case, including the Board’s unchallenged findings
that Mr. Miller made protected disclosures, that those
disclosures contributed to his removal, and that
Mr. Miller was by all accounts an outstanding employee.
Without introducing any other testimony or documentary
evidence—for example, from OIG, the group that the
Warden testified, see J.A. 118, and the Government
concedes, see Oral Argument at 37:32–55, drove the
December 2009 reassignment decision—there is a signifi-
cant weakness in the quantum of the Government’s
evidence going towards the first Carr factor. By pointing
to the lack of corroboration, the dearth of documents,
emails, or records, and even the lack of detail in War-
den Upton’s recollection, we are not assessing War-
den Upton’s credibility. Rather, we are doing precisely
16 MILLER v. DOJ
what our review of this Carr factor demands: assessing
whether a factfinder could reasonably conclude that the
Government presented strong evidence of independent
causation. We conclude that one could not and that this
factor, therefore, could not cut in the Government’s favor
as the Board found.
The second Carr factor is “the existence and strength
of any motive to retaliate on the part of the agency offi-
cials who were involved in the decision.” Carr, 185 F.3d
at 1323. The A.J. found that Warden Upton had “little or
no motive to retaliate against” Mr. Miller. J.A. 136. In
reaching this conclusion, the A.J. relied on the fact that
Warden Upton did not exercise direct oversight over the
factory and the Warden’s testimony that it did not matter
much to him whether the factory turned a profit.
While the Board’s analysis of this factor was reasona-
ble, we note that the Warden testified that he did, in fact,
have an interest in the ongoing operation of the prison
factory to keep inmates “out of trouble” and occupied,
instead of sitting around for months at a time. The
Warden also testified that a possible shutdown of the
factory would “create concern,” because “you have to
figure out how that fits into your daily operational plan.”
J.A. 116–17. And regarding the A.J.’s reliance on the
Warden’s lack of direct factory oversight, we have previ-
ously admonished the Board for taking a dismissive
approach to the retaliatory motive Carr factor merely
because a supervisor isn’t directly involved in the work at
issue in an employee’s protected disclosure. In Whitmore,
the A.J. found no evidence that the removing officials had
a retaliatory motive against the employee because they
were outside of his chain of command and were not impli-
cated by his whistleblowing. 680 F.3d at 1370–71. We
found that this analysis took “an unduly dismissive and
restrictive view of Carr factor two,” id. at 1370, and
remanded with instructions for broader consideration of
this factor, id. at 1372. We explained that “[t]hose re-
MILLER v. DOJ 17
sponsible for the agency’s performance overall may well
be motivated to retaliate even if they are not directly
implicated by the disclosures, and even if they do not
know the whistleblower personally, as the criticism
reflects on them in their capacities as managers and
employees.” Id. at 1370 (citations omitted).
We also find it concerning that the A.J. made a find-
ing regarding Warden Upton’s retaliatory motive, but
none regarding OIG’s motive. The precise language from
Carr makes clear that this factor should be evaluated
more generally, as the factor is directed towards “agency
officials who were involved in the decision,” not just the
employee’s direct supervisor. Carr, 185 F.3d at 1323; see
also Whitmore, 680 F.3d at 1371 (“[A]n agency official’s
merely being outside that whistleblower’s chain of com-
mand, not directly involved in alleged retaliatory actions,
and not personally named in the whistleblower’s disclo-
sure is insufficient to remove the possibility of a retaliato-
ry motive or retaliatory influence on the whistleblower’s
treatment.”). Considering that, in this case, it was OIG
that purportedly directed the Warden to reassign
Mr. Miller, it would seem important in this case to exam-
ine whether one could impute a retaliatory motive to OIG.
Given these considerations, the evidence for this fac-
tor does not unfailingly support the Government. None-
theless, given the Warden’s testimony that he had no
reason to be concerned about the factory’s profits, the
Board’s conclusion that this factor ultimately tips in the
Government’s favor is reasonable.
The third and final Carr factor is “any evidence that
the agency takes similar actions against employees who
are not whistleblowers but who are otherwise similarly
situated.” Carr, 185 F.3d at 1323. The A.J. found that
there was no basis for evaluating this factor because
Warden Upton testified that no other similar investiga-
18 MILLER v. DOJ
tions involving members of his executive staff occurred
during his tenure as Warden.
The Government took an exceedingly narrow ap-
proach in addressing this factor. The Warden’s testimony
shows there to be a lack of similarly situated non-
whistleblowers only at the Beaumont prison facility
working on the Warden’s four-member executive staff
specifically and only during his tenure there. The Gov-
ernment introduced no evidence as to what actions it
takes against other DOJ employees during OIG investiga-
tions despite this factor being directed to the “agency”
rather than to a particular supervisor at a particular
Federal Bureau of Prisons facility. It may be the case
that the DOJ transfers employees pending investigation
by OIG with some regularity, but the Government has put
forward no evidence of that here. The Government pro-
vided no evidence that the treatment of Mr. Miller is
comparable to similarly situated employees who are not
whistleblowers, and the court may not simply guess what
might happen absent whistleblowing. The burden lies
with the Government.
The Government bears the risk associated with hav-
ing no evidence on record for this factor. For while we
have indicated that “the absence of any evidence relating
to Carr factor three can effectively remove that factor
from the analysis,” we further explained that the Gov-
ernment’s failure to produce evidence on this factor “may
be at the agency’s peril” considering the Government’s
advantage in accessing this type of evidence. Whitmore,
680 F.3d at 1374 (internal citations omitted). Indeed, “the
absence of any evidence concerning Carr factor three may
well cause the agency to fail to prove its case overall.” Id.Thus, this factor adds little to the overall analysis in this
case, but if anything, tends to cut slightly against the
Government.
MILLER v. DOJ 19
Considering the record as a whole, we are struck by
the want of evidence presented by the Government to
show independent causation. Although the Government
adduced some evidence for Carr factor two, the strength
of its independent causation evidence (Carr factor one)
was weak, and it adduced no evidence whatsoever for
Carr factor three. While we again recognize that the
Government need not introduce evidence for each Carr
factor, or prove that each weighs in its favor to meet its
burden, id., we cannot say that substantial evidence
supports a finding that the Government clearly and
convincingly proved independent causation in this case.
The Government must do more than it did here to satisfy
the “high burden of proof” that Congress demanded in
cases where the employee has already shown that whis-
tleblowing was a contributing factor and the burden shifts
to the Government to show independent causation. Id. at
1367 (quoting 135 Cong. Rec. H747–48 (daily ed. Mar. 21,
1989) (explanatory statement on Senate Amendment to
S. 20)). Thus, we conclude that there is not substantial
evidence to support the Board’s determination that the
Government proved by clear and convincing evidence that
it would have reassigned Mr. Miller even in the absence of
his protected disclosures.
Contrary to the dissent’s suggestion, we do not hold
that Warden Upton is not credible or that his testimony
requires corroboration as a matter of law. Nor have we
reweighed the evidence. The dissent accuses our opinion
of having a breadth that it simply does not have. We
merely hold that, in this case, there is a failure of proof
because the Government did not meet its burden. Con-
gress instituted a particular statutory framework for
analyzing whistleblower cases, including a heightened
burden of proof once the whistleblower has established by
a preponderance of the evidence that whistleblowing was
a contributing factor in a personnel action. “This height-
ened burden of proof required of the agency recognizes
20 MILLER v. DOJ
that when it comes to proving the basis for an agency’s
decision, the agency controls most of the cards—the
drafting of the documents supporting the decision, the
testimony of witnesses who participated in the decision,
and the records that could document whether similar
personnel actions have been taken in other cases.” Id.Here, there is a dearth of evidence establishing independ-
ent causation: no testimony other than Warden Upton’s
conclusory testimony, no documents whatsoever support-
ing the agency’s action, and no records to document
similar actions in other cases.
The dissent also alleges that we fail to “cite to a single
piece of affirmative evidence that Mr. Miller was reas-
signed for whistleblowing.” Dissent 10. But the dissent
wholly ignores what the Board already found and the
Government does not dispute on appeal: Mr. Miller
“made protected disclosures under 5 U.S.C. § 2302(b)(8)
that were a contributing factor in the decision to reassign
him.” Miller v. Dep’t of Justice, No. DA-1221-11-0401-W-
3, 2015 WL 1548991 (M.S.P.B. Apr. 8, 2015). Thus, our
review is strictly limited to whether the Government met
its steep burden to show independent causation guided by
the Carr factors, in which the dissent fails to ground its
discussion.
Finally, the dissent accuses our opinion of failing “to
appreciate the impact of [this] decision on the agency” and
Warden Upton 5 because the agency likely will be required
5 The dissent asserts that harm will come to War-
den Upton as a result of our decision. We reiterate,
however, that we do not question Warden Upton’s veraci-
ty. We simply conclude that, given the other evidence of
record, the Government’s sole reliance on his conclusory
and unsupported testimony was not enough to satisfy the
Government’s burden.
MILLER v. DOJ 21
to report this case to Congress. Dissent 10. But sympa-
thy for the agency does not bear on the question before us.
The statutory framework this court must follow requires
us to consider whether a reasonable fact finder could find
the Government met its “heavy burden to justify its
actions” after the employee had already established that
whistleblowing was a contributing factor in the action.
Whitmore, 680 F.3d at 1367 (quoting 135 Cong. Rec.
H747–48 (daily ed. Mar. 21, 1989) (explanatory statement
on Senate Amendment to S. 20)). We conclude that, in
this case, one could not.
CONCLUSION
For the foregoing reasons, we reverse the Board’s de-
cision and remand for further proceedings including
determination of the remedy appropriate for the improper
personnel action.
REVERSED AND REMANDED
COSTS
Costs to Petitioner.
United States Court of Appeals
for the Federal Circuit
______________________
TROY W. MILLER,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2015-3149
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-1221-11-0401-W-3.
______________________
REYNA, Circuit Judge, concurring.
I concur with the majority opinion. I write separately
to elaborate on why the Board erred in evaluating the
second Carr factor: “the existence and strength of any
motive to retaliate on the part of the agency officials who
were involved in the decision.” Carr v. Soc. Sec. Admin.,
185 F.3d 1318, 1323 (Fed. Cir. 1999). Warden Upton
testified that Mr. Miller was “a fantastic employee” whom
he reassigned only because OIG directed him to do so.
Thus, not only was OIG “involved in the decision,” but the
record suggests that OIG—not Warden Upton—was the
de facto decisionmaker here.
A “Cat’s Paw” theory applies when an individual with
knowledge of the protected disclosure influences another
2 MILLER v. DOJ
official to reassign the employee. Thus, the official mak-
ing the reassignment is simply channeling the wishes of
the de facto decisionmaker. We have not addressed the
Cat’s Paw theory in a published whistleblower decision,
but the Supreme Court addressed it in a different context,
writing, “[I]f a supervisor performs an act motivated by
antimilitary animus that is intended by the supervisor to
cause an adverse employment action, and if that act is a
proximate cause of the ultimate employment action, then
the employer is liable” under the relevant statute. Staub
v. Proctor Hosp., 562 U.S. 411, 424 (2011). Here, Warden
Upton performed an act intended to cause an adverse
employment action but insists that he was following
OIG’s orders. Given Warden Upton’s positive reviews of
Mr. Miller’s job performance, it seems unlikely that he
would have reassigned Mr. Miller absent OIG’s influence.
Yet the Board never questioned whether OIG in fact
directed Mr. Miller’s reassignment or its motivation for
doing so. See J.A. 126–27 (evaluating only Warden Up-
ton’s retaliatory motive). 1
In Whitmore v. Department of Labor, 680 F.3d 1353(Fed. Cir. 2012), we noted that once an employee makes a
prima facie case, the Board is not limited to evaluating
the retaliatory motives of agency officials directly in the
whistleblower’s chain of command. Id. at 1371. Instead,
the Board should consider the possible retaliatory motives
1 The dissent implies that Mr. Miller has waived a
Cat’s Paw theory argument. But the Board’s failure to
evaluate OIG’s role in Mr. Miller’s reassignment lends
further support that its decision was not supported by
substantial evidence. See Jones v. Dep’t of Justice, 35
F.3d 1542, 1546 (Fed. Cir. 1994) (“The substantiality of
evidence must take into account whatever in the record
fairly detracts from its weight.”).
MILLER v. DOJ 3
of any official who appears to have influenced the adverse
employment action. Thus, at minimum, I would remand
for the Board to determine OIG’s role and motivation in
Mr. Miller’s reassignment in the first instance.
The dissent questions what OIG’s possible retaliatory
motive could be in light of OIG’s role to protect whistle-
blowers. But answering that question is not Mr. Miller’s
burden. The parties agreed that Mr. Miller made a prima
facie case, thus shifting the burden to the Government to
show independent causation by clear and convincing
evidence. As the majority opinion notes, it failed to do so.
The Government’s failure to explain OIG’s obvious role in
Mr. Miller’s reassignment only highlights the lack of clear
and convincing evidence of independent causation.
United States Court of Appeals
for the Federal Circuit
______________________
TROY W. MILLER,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2015-3149
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-1221-11-0401-W-3.
______________________
HUGHES, Circuit Judge, dissenting.
In a whistleblower case where an employee makes a
prima facie case of whistleblower reprisal, the burden
shifts to the agency to prove by clear and convincing
evidence that it took the adverse action for a reason other
than whistleblower reprisal. Whether the agency had a
non-retaliatory reason is a factual determination, which
we review for substantial evidence. Here, the Board made
that factual determination relying largely on the unrebut-
ted, credible testimony of Warden Upton, the agency
official responsible for taking the adverse action. As
Warden Upton testified, and the Board found, Mr. Miller
was reassigned to other job duties at OIG’s request so as
not to interfere with an official investigation.
2 MILLER v. DOJ
The majority nowhere suggests that this reason, if
true, would have been insufficient to satisfy the agency’s
burden. Nor does the majority anywhere directly ques-
tion Warden Upton’s credibility, or his testimony that
Mr. Miller’s interference with the investigation was the
actual reason for the reassignment. Thus, the majority’s
reasoning would seem to lead to the following conclusions:
first, the deciding official credibly testified that the reason
he took the adverse action was at OIG’s request; second,
the majority has no reason to question this testimony or
overturn the Board’s implicit credibility determination
that the official testified truthfully; and third, the reason
given––Mr. Miller’s interference with the investigation––
would have met the clear and convincing evidence stand-
ard if true. These three conclusions, which can all be
gleaned from the majority’s opinion, require us to affirm.
Instead the majority concludes, on some undefined
notion of substantial evidence, that there should be
“more” here. Specifically, the majority states that the
lack of “any other testimony or documentary evidence—
for example, from OIG” presents a “significant weakness”
in the Government’s case, Maj. Op. at 15, and that the
“Government must do more than it did here to satisfy the
‘high burden of proof’” that is required in whistleblower
reprisal cases, id. at 19. But substantial evidence re-
quires only “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion,” Con-
sol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938), and
the Board’s factual conclusions, each of which is support-
ed by substantial evidence, would be sufficient for a
reasonable person to conclude that Mr. Miller was reas-
signed for reasons independent of whistleblower reprisal.
Thus, there are only three possible explanations for
the majority’s conclusion, all of which conflict with this
Court’s precedent.
MILLER v. DOJ 3
The first and most likely explanation is that the ma-
jority simply disregards our deferential standard of re-
view. The majority reaches beyond our deference
standard to re-weigh the evidence and conclude that
“given the other evidence of record, the Government’s sole
reliance on [Warden Upton’s] conclusory and unsupported
testimony was not enough to satisfy the Government’s
burden.” Maj. Op. at 20 n.5. The majority appears to
base its heightened review standard on the argument that
we must take the underlying burden of proof––clear and
convincing evidence––into consideration in our review on
appeal, id. at 8–10, and goes so far as to say that our
“focus” is “on whether [the agency’s evidence purporting
to show independent causation] is strong,” id. at 12. I do
not dispute that we must take into account the Govern-
ment’s burden to show independent causation by clear
and convincing evidence. However, this does not trans-
form our assessment into a de novo review, and our
precedent does not dictate that this Court’s standard of
review is to assess the strength of the agency’s evidence
de novo. See Carr v. Soc. Sec. Admin., 185 F.3d 1318,
1323–24 (Fed. Cir. 1999) (noting that the Board, not this
Court, considers the strength of the agency’s evidence in
support of its personnel action). Rather, established
precedent dictates that we are only tasked with evaluat-
ing whether a reasonable fact finder could have arrived at
the Board’s determination that Mr. Miller was reassigned
for reasons independent of his protected disclosures. See
In re Gartside, 203 F.3d 1305, 1312 (Fed. Cir. 2000) (the
substantial evidence standard “asks whether a reasonable
fact finder could have arrived at the agency’s decision”).
Ample evidence exists to support the Board’s factual
finding that the agency demonstrated, by clear and con-
vincing evidence, that the reason for Mr. Miller’s reas-
signment was to prevent him from interfering with an
OIG investigation. First, of course, is the consistent and
credible testimony of Warden Upton, the deciding official
4 MILLER v. DOJ
who took the action. See, e.g., J.A. 542–45 (Warden Upton
testifying that OIG asked him to reassign Mr. Miller
because of the investigation). Second is Mr. Miller’s own
testimony about the reason for the reassignment. Id. at
273 (Mr. Miller testifying that Warden Upton told him to
leave the factory on December 15, 2009, due to the OIG
investigation); id. at 283 (Mr. Miller testifying that War-
den Upton told him he was being reassigned on December
16, 2009, because Miller had purportedly sent an email to
the staff urging them not to cooperate with the OIG
investigation). And, third is the fact that Mr. Miller had
to be reassigned to other positions within the Bureau of
Prisons because he did, in fact, continue to attempt to
interfere with the investigation. Id. at 546–50 (Warden
Upton testifying that Mr. Miller was removed from sub-
sequent positions because he had conversations with
inmates and monitored calls to gain information about the
investigation). Although a different fact-finder might not
have believed Warden Upton or the agency’s account, we
are not permitted to re-weigh or recharacterize the evi-
dence as the majority does. See Maj. Op. at 13–14 (con-
cluding that there is no evidence that Mr. Miller could
either compromise or be a target of an investigation that
his protected disclosure related to).
Second, even as the majority denies that it is ques-
tioning Warden Upton’s credibility, it essentially deter-
mines that his testimony is insufficient and the reasons
he gave for the reassignment are not the truth. That, of
course, we cannot do. See Hambsch v. Dep’t of the Treas-
ury, 796 F.2d 430, 436 (Fed. Cir. 1986) (credibility deter-
minations are “virtually unreviewable”). There is no
evidence to suggest that Warden Upton lied about his
rationale for reassigning Mr. Miller. Warden Upton
consistently testified that he reassigned Mr. Miller due to
the pending OIG investigation and at OIG’s request. The
Board was never presented with contrary testimony. The
majority faults Warden Upton’s testimony for his failure
MILLER v. DOJ 5
to “testify as to significant details, such as who at OIG he
communicated with.” Maj. Op. at 14. But the majority
fails to consider that Warden Upton testified about
Mr. Miller’s reassignment more than four years after the
reassignment took place. And, in any event, the fact that
Warden Upton could not remember those details goes to
the credibility of his testimony, which is a question for the
Board and not for us. The majority also neglects to take
into account that Mr. Miller himself testified that Warden
Upton explained to him on multiple occasions that he was
being reassigned because of the OIG investigation. See,
e.g., J.A. 273, 283. The majority has to find a lack of
substantial evidence to support the Board’s factual find-
ing, and cannot premise its decision on its own belief that
something more happened here. See Kewley v. Dep’t of
Health & Human Servs., 153 F.3d 1357, 1364 (Fed. Cir.
1998) (affirming the finding of independent causation by
looking only to the evidence “expressly relied upon by the
AJ [Administrative Judge]”). 1
1 At times, the majority appears to suggest that,
even if Warden Upton was telling the truth, the agency
also was required to demonstrate that OIG had a clear
and convincing non-retaliatory reason for requesting the
reassignment. See Maj. Op. at 17. (“We also find it
concerning that the A.J. made a finding regarding War-
den Upton’s retaliatory motive, but none regarding OIG’s
motive.”). But that type of “Cat’s Paw” theory, see, e.g.,
Howard v. Dep’t of Transp., 511 F. App’x 984, 987 (Fed.
Cir. 2013) (rejecting petitioner’s theory that an individual
with knowledge of a protected disclosure exerted influence
on the managerial official who terminated the petitioner’s
employment), was not presented to the Board or to this
Court.
6 MILLER v. DOJ
The third, and perhaps the most damaging explana-
tion for the majority’s opinion, is that it has sub silentio
imposed a corroboration requirement for a deciding offi-
cial’s testimony. Even though the majority denies that it
is doing so or even that it is questioning Warden Upton’s
credibility, I can think of no other explanation for its
criticisms that Warden Upton’s testimony was the “only
evidence supporting the seemingly unusual basis for
Mr. Miller’s four-and-a-half-year reassignment,” 2 and
“[t]he Government failed to present any other witness
testimony to support its argument that Mr. Miller was
removed out of concern that he might somehow interfere
with the OIG investigation.” Maj. Op. at 14. The majori-
ty also suggests that there would have been documenta-
tion of repeated reassignments. Id. at 14–15. The
majority’s “common sense” speculation is unfounded and
inconsistent with federal personnel law. Official person-
nel documents are generated for changes in grade, pay,
official duty station and the like, not temporary reas-
signments. Contrary to the majority’s assertion, I would
not expect any kind of official documentation to exist for
Mr. Miller’s reassignments which did not involve a change
in position, pay or official duty station. See United States
Office of Personnel Mgmt., Guide to Processing Personnel
Actions (2016), https://www.opm.gov/policy-data-
oversight/data-analysis-documentation/personnel-
documentation/#url=Processing-Personnel-Actions.
2 And I fail to see what is “unusual” about a reas-
signment decision made to cooperate with an OIG investi-
gation. Surely, the majority is not suggesting that
agencies refuse to cooperate with the Inspector General.
And if “unusual” refers to the length, I see nothing in the
record to suggest that 4.5 years is an “unusual” length of
time for an OIG investigation.
MILLER v. DOJ 7
The majority’s use of a corroboration requirement is
the only explanation that would suffice for it to hold that
a deciding official’s credible testimony is insubstantial or
false. There is no one with better firsthand knowledge to
testify about the reasons for a personnel action than the
person responsible for taking it. Warden Upton was
indisputably Mr. Miller’s direct supervisor and had the
authority to reassign him. While an agency official could
certainly lie about his or her decision to reassign an
employee, that is largely a credibility determination for
the Board to make. And, the majority appears to concede
that Warden Upton, the agency official in this case,
provided credible testimony. See Maj. Op. at 15.
The majority’s erroneous findings are further high-
lighted through its conclusion that Warden Upton’s “bare
testimony about what OIG directed him to do affords only
minimal support for Mr. Miller’s removal” in light of other
evidence. Id. This other evidence includes the Board’s
“unchallenged findings” that Mr. Miller made protected
disclosures that contributed to his removal, and Mr.
Miller’s record as an “outstanding employee.” Maj. Op. at
15. As a preliminary matter, while the Board did find
that Mr. Miller made a prima facie case that he made a
protected disclosure that was a contributing factor in the
reassignment, J.A. 132–35, the burden then shifted to the
agency to demonstrate by clear and convincing evidence
that it would have made the reassignment in the absence
of the disclosures. J.A. 135. That is the sole issue on
appeal here, and the Carr factors––which the majority
concedes govern here––do not consider the employee’s
success in making a prima facie case of whistleblower
reprisal. Indeed, it is the employee’s success in doing so
that mandates the consideration of the Carr factors in the
separate inquiry into the agency’s reasons for the reas-
signment. Furthermore, the majority mischaracterizes
both the Board’s finding and the Government’s position as
conceding that Mr. Miller’s disclosures contributed to his
8 MILLER v. DOJ
reassignment. Maj. Op. at 20 (“But the dissent wholly
ignores what the Board already found and the Govern-
ment does not dispute on appeal: Mr. Miller ‘made pro-
tected disclosures under 5 U.S.C. § 2302(b)(8) that were a
contributing factor in the decision to reassign him.’”
(quoting Miller v. Dep’t of Justice, No. DA-1221-11-0401-
W-3, 2015 WL 1548991 (M.S.P.B. Apr. 8, 2015)). In fact,
the opposite is the case. The Government asserted and
the Board clearly found that Mr. Miller’s disclosures did
not contribute to his reassignments, which is why his
whistleblower claims were rejected. See J.A. 146 (“[T]he
record demonstrates that the appellant’s initial and
successive reassignments were precipitated by an exter-
nal OIG investigation.”); Resp. Br. at 10–12.
The majority also apparently believes that OIG is so
closely tied to the agency that an OIG representative
should have testified as to Mr. Miller’s removal, and that
the Board should have assessed whether OIG had a
possible retaliatory motive. 3 That suggestion evidences a
3 The concurrence goes further and suggests that
the case should, in fact, be remanded for the agency to
affirmatively demonstrate a lack of any retaliation by
OIG. See Concurring Op. at 2–3. But, as noted above,
that theory of whistleblower retaliation was never pre-
sented to the Board or even suggested to this court—it
was only suggested by members of the majority. An
agency should not be required, under Carr factor two, to
disprove theories of retaliation that were never presented
to the Board and not part of the prima facie case. The
burden does not shift to the agency until a prima facie
case has been made which makes sense. A prima facie
case is made by showing a protected disclosure, a prohib-
ited personnel action, and knowledge of the disclosure
within temporal proximity by the official taking the
MILLER v. DOJ 9
misunderstanding of the role of the Inspectors General in
our federal government. The OIGs are, by congressional
design, objective units independent from the respective
agencies. Their purpose is, among other things, to detect
fraud and abuse. See Inspector General Act of 1978, Pub.
L. 95–452, § 2, 92 Stat. 1101 (1978). And, in doing so,
they often rely on reports from whistleblowers. See 5
U.S.C. § 2302(b)(8)(B) (protecting whistleblower disclo-
sures to the Inspectors General). To suggest that the OIG
would retaliate against a whistleblower flies in the face of
its congressionally mandated mission. But this discussion
is beside the point because there is no evidence that OIG
had a retaliatory motive. It is purely speculative and has
no place in a substantial evidence review. 4
In any event, there is no dispute that Warden Upton
was Mr. Miller’s direct supervisor and had the sole au-
thority to reassign him. Therefore, the majority errs in
faulting the Government for failing to provide testimony
from OIG.
personnel action. See, e.g., Whitmore v. Dep’t of Labor,
680 F.3d 1353, 1367 (Fed. Cir. 2012). Our precedent does
not require an agency to go further and disprove other
possible retaliatory actions when no prima facie case has
been made. And if it does, it ought to be corrected.
4 It is, however, potentially dangerous dicta, to the
extent it suggests, that OIG might have some affirmative
duty to explain its reasoning for a reassignment during an
investigation or provide evidence of why it is necessary for
these reassignments to take place. The circumstances of
their various investigations can and do involve extremely
sensitive and/or potentially criminal actions. A require-
ment that OIG disclose anything to the agency it is inves-
tigating has the potential to damage an ongoing
investigation.
10 MILLER v. DOJ
Finally, the majority fails to appreciate the impact of
its decision on the agency. The majority’s reversal of the
Board’s decision likely means that Mr. Miller will succeed
in his claim of whistleblower reprisal since the Court has
now ruled that the agency failed to rebut his prima facie
case. Under the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002 (the No
FEAR Act), the agency likely will be required to report
this case to Congress. See Pub. L. 107-174, § 203, 116
Stat. 569 (2002). The majority’s decision will require this
report even though the majority cannot cite to a single
piece of affirmative evidence that Mr. Miller was reas-
signed for whistleblowing. In addition, Warden Upton
will be associated with taking a personnel action that the
majority now labels as whistleblower retaliation, even
though the Board found his testimony credible and there
is nothing in the record to indicate that he either lied or
reassigned Mr. Miller for whistleblowing activity. Thus,
the majority’s opinion not only does damage to the law,
but also harms, without any evidence of wrongdoing, a
government supervisor with over 20 years of federal
service.
At the end of the day, after denying that it is making
a de novo credibility determination or imposing a corrobo-
ration requirement for the deciding official’s testimony,
the majority’s basis for reversing the Board’s decision
seems to be that something “more” was required. But our
statutorily limited scope of review over Board decisions
conflicts with the majority’s requirement for “more.” See
5 U.S.C. § 7703(c)(3) (as applicable here, we may only
“hold unlawful and set aside any agency action, findings,
or conclusions found to be . . . unsupported by substantial
evidence”). I don’t dispute that additional evidence, such
as more detailed testimony from Warden Upton about
OIG’s request to reassign Mr. Miller—for example, the
requesting investigator’s name, or an affidavit from OIG
averring to the requested reassignment—would certainly
MILLER v. DOJ 11
have bolstered the agency’s case. But these considera-
tions are only relevant to either credibility or corrobora-
tion, the first of which we do not review, and the second of
which the majority disclaims.
“Substantial evidence is more than a scintilla, and
must do more than create a suspicion of the existence of
the fact to be established.” Nippon Steel Corp. v. United
States, 458 F.3d 1345, 1351 (Fed. Cir. 2006). A reviewing
court must consider the record as a whole, including that
which “fairly detracts from its weight.” Id. Having point-
ed to no evidence that detracts from Warden Upton’s
testimony and, indeed, disclaiming any attack on his
credibility, the majority nevertheless concludes that his
testimony is insufficient for a reasonable mind to accept.
Or put simply, the deciding official’s credible and uncon-
tradicted testimony about the non-retaliatory reason he
took the disputed action is insufficient to establish that
the action was non-retaliatory. I have never heard of
such an application of the substantial evidence standard
that rejects uncontradicted, truthful testimony in favor of
unfounded speculation about what might have happened
or what more the agency should have done.
Under the proper application of the substantial evi-
dence review standard, I would affirm the Board’s deci-
sion. From the majority’s contrary conclusion, I
respectfully dissent.