Siler v. Epa , 908 F.3d 1291 ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
MATTHEW R. SILER,
Petitioner
v.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
______________________
2017-2446
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0752-16-0564-I-3.
______________________
Decided: November 13, 2018
______________________
MOLLY E. BUIE, Seldon Bofinger & Associates, P.C.,
Washington, DC, argued for petitioner. Also represented
by ROBERT C. SELDON.
MEEN GEU OH, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by
ELIZABETH M. HOSFORD, ROBERT E. KIRSCHMAN, JR.,
JOSEPH H. HUNT; PAUL M. SCHNEIDER, Office of General
Counsel, United States Environmental Protection Agency,
Washington, DC.
______________________
2 SILER v. EPA
Before O’MALLEY, CLEVENGER, and STOLL, Circuit
Judges.
STOLL, Circuit Judge.
The Environmental Protection Agency removed
Mr. Matthew Siler from his position following an adminis-
trative investigation. On appeal to the Merit Systems
Protection Board, the Board sustained the agency’s attor-
ney-client privilege claim as to certain draft documents
related to Mr. Siler’s removal, found in favor of the EPA
on Mr. Siler’s whistleblower defense, and ultimately
affirmed the EPA’s decision to remove Mr. Siler.
Mr. Siler argues that the Board erred by finding the
draft documents privileged and that it misapplied the law
concerning his whistleblower defense. Because we agree,
we vacate the Board’s decision and remand this case.
BACKGROUND
Mr. Siler’s Original AK, Inc.
From 1997 to 2016, Mr. Siler served as an EPA Spe-
cial Agent in the agency’s criminal investigation division
(CID), a subdivision of its Office of Criminal Enforcement,
Forensics, and Training (OCEFT). As a special agent,
Mr. Siler investigated criminal violations of environmen-
tal law.
While at the EPA, Mr. Siler also operated a personal
business, Original AK, Inc., through which he sold mili-
tary collectibles and firearms. J.A. 1490–91. Though
EPA regulations require employees to disclose all outside
businesses, Mr. Siler admits that he failed to report his
involvement with Original AK. See J.A. 622–35 (“Abso-
lutely I filled out the form wrong . . . .”). Mr. Siler also
admits that he used his government computer for this
personal business, violating EPA rules. See J.A. 350,
635–48 (“I should not have used my . . . government
computer for these transactions.”).
SILER v. EPA 3
A 2014 incident brought Original AK and these rule
violations to the EPA’s attention. As part of his Original
AK business, Mr. Siler had obtained AK-47 part kits and
contracted for the kits to be assembled into operational
rifles. J.A. 399–400, 656–62. After becoming dissatisfied
with his contractor’s work, Mr. Siler decided to recover
the part kits. He drove to the contractor’s workshop,
retook the parts, and loaded them into a rented van.
J.A. 400–02, 675–81. Mr. Siler then drove towards home.
J.A. 1877–80. Tired from his trip, he parked his van, still
loaded with the rifle parts, in EPA parking rather than
his personal storage facility. Id.
Shortly after he retrieved the part kits, Mr. Siler re-
ceived an email from the contractor itemizing costs.
J.A. 226–27. Mr. Siler responded, demanding the return
of almost all of his deposit and stating “there are severe
criminal and civil penalties for your actions . . . . I am
fully prepared to turn my evidence of these firearms
offenses over to the proper authorities . . . should you elect
not to return my money.” J.A. 412–14. Mr. Siler later
admitted that he had tried to intimidate the contractor
and had intentionally used “scary” language. J.A. 687–89,
1947. He affirmed that, though the contractor had violat-
ed gun laws, Mr. Siler did not intend to report those
violations if the contractor returned his money. See
J.A. 687–88.
On receipt of Mr. Siler’s email, in May 2014, the con-
tractor promptly filed a complaint with the Bureau of
Alcohol, Tobacco, Firearms and Explosives. J.A. 419. The
EPA placed Mr. Siler on administrative leave while the
Office of the Inspector General (OIG) investigated. OIG
cleared Mr. Siler of criminal charges in January 2015.
See J.A. 393–98. It then transmitted its report to OCEFT
Director Henry Barnet for “administrative review and any
action deemed appropriate,” and Mr. Siler returned to
work on light duty. J.A. 396.
4 SILER v. EPA
In June 2015, Mr. Siler was still on light duty.
J.A. 1895, 1969–71. He was not operating as a special
agent, and he did not have access to his badge or his
service weapon. His supervisor, Assistant Special Agent
in Charge (ASAC) Justin Oesterreich, offered encourage-
ment, however, telling Mr. Siler things “looked good” for
an eventual return to full duty based on his conversations
with EPA leaders. See J.A. 1895–96, 1970–72.
Mr. Siler’s Protected Disclosures
In late June 2015, shortly after Mr. Siler learned
things “looked good” for him, Mr. Siler became involved in
an investigation into his second-line supervisor, Special
Agent in Charge (SAC) Randall Ashe.
SAC Ashe’s conduct had previously been questioned.
In 2010, an employee accused SAC Ashe of using threat-
ening language and reporting for duty under the influence
of alcohol. J.A. 1318. Though the subsequent investiga-
tion found “the evidence d[id] not substantiate misconduct
that require[d] disciplinary action,” id., SAC Ashe admit-
ted to using sexually inappropriate language, and was
warned that such “offensive language, demeaning to
women . . . will not be tolerated,” id.
In 2014, SAC Ashe was again accused of conduct un-
becoming a supervisor. J.A. 1302–06. The EPA’s investi-
gation substantiated eight separate specifications
underlying that charge. J.A. 1303, 1320. Among other
things, it found that SAC Ashe had made inappropriate
sexual comments and had inappropriately touched a
female subordinate. J.A. 1303. On July 28, 2015, then-
CID Director Douglas Parker recommended a thirty-day
suspension as a penalty. J.A. 1302. OCEFT Director
Barnet ultimately mitigated that penalty and suspended
SAC Ashe for fourteen days beginning in November 2015.
J.A. 1319–21.
SILER v. EPA 5
While the agency was considering the appropriate
sanction for SAC Ashe, he was still in the office. On
June 15, 2015, SAC Ashe touched a female employee on
the shoulder and commented on her appearance.
J.A. 1349–51, 1447–48. He acted oddly, miming hitting
Mr. Siler with a box, see J.A. 1448, 1454–56, and Mr. Siler
observed SAC Ashe asleep at his desk during work, see
J.A. 1454–56, 1955–57. Concerned, an employee alerted
ASAC Oesterreich of SAC Ashe’s behavior.
ASAC Oesterreich interviewed those in the Office who
had witnessed SAC Ashe’s behavior, including Mr. Siler.
J.A. 1447–59. Mr. Siler expressed fear of retaliation but
reluctantly stated that SAC Ashe had been sleeping at his
desk and had smelled of alcohol while on duty. See
J.A. 1454–56, 1381–82. Others testified similarly, and
one of Mr. Siler’s co-workers provided a photograph
Mr. Siler had taken of SAC Ashe asleep at his desk.
J.A. 1346, 1447–59, 1955–57. Mr. Siler himself had
deleted the photo “when he realized [it] was becoming an
issue.” J.A. 1456.
On July 2, 2015, ASAC Oesterreich transmitted his
report, including Mr. Siler’s statements, to agency leader-
ship. J.A. 1446–59. Another investigation into SAC Ashe
followed. See J.A. 978–80. During that investigation,
SAC Ashe completed his earlier-ordered 14-day suspen-
sion and was instructed to telework. See J.A. 1735–36. In
August 2016, after the agency concluded its investigation,
CID Director Ted Stanich and OCEFT Director Barnet
imposed a 14-day suspension. See J.A. 1313–17, 1360–62.
SAC Ashe reached mandatory retirement age and retired
prior to serving it. See J.A. 1736–37.
The Administrative Investigation into Mr. Siler
On July 15, 2015, roughly two weeks after receiving
Mr. Siler’s statement on SAC Ashe from ASAC Oester-
reich, agency leadership met and initiated a supplemental
administrative investigation into Mr. Siler’s Original AK
6 SILER v. EPA
business and his 2014 contractor dispute. See, e.g.,
J.A. 1519–21, 1572–80. That administrative investigation
concluded that Mr. Siler had (1) engaged in conduct
unbecoming a criminal investigator by threatening a
criminal report unless money was refunded to him and by
parking his AK-47 parts on EPA property overnight;
(2) improperly used his government computer for outside
business; and (3) failed to report his outside business.
J.A. 417–32; see also J.A. 60–64. On review of the admin-
istrative report, CID Director Stanich proposed, and
OCEFT Director Barnet agreed, that Mr. Siler, only 11
months shy of eligibility for retirement, should be re-
moved from his position. See J.A. 60–79. Director Barnet
ordered Mr. Siler’s removal less than two weeks before
suspending SAC Ashe. J.A. 70, 1360.
Mr. Siler’s Appeal to the Board
A government employee removed from his position
may appeal to the Board, see 5 U.S.C. § 7512;
5 C.F.R. § 1201.3(a)(1), and Mr. Siler did so. He argued
that removal was not a reasonable penalty, and he assert-
ed that his statements regarding SAC Ashe constituted
protected whistleblowing that caused the agency to retali-
ate against him. See 5 U.S.C. § 1221.
Late in discovery, the agency produced undated draft
notices of proposed sanctions against Mr. Siler. J.A. 1667,
1932. The drafts identified CID Director Stanich’s prede-
cessor, Mr. Parker, who retired before Mr. Siler was
removed, as the decision maker, though the agency had
previously represented that Mr. Parker was not involved
in the decision to terminate Mr. Siler. See J.A. 1898,
1931–32; Oral Arg. at 7:02–9:05, http://oralarg
uments.cafc.uscourts.gov/default.aspx?fl=2017-2446.mp3.
One draft suggested that Mr. Siler should be suspended,
and another draft suggested that he should be removed.
J.A. 1667, 1932.
SILER v. EPA 7
Mr. Siler sought the transmittal emails to which these
drafts had been attached, and the agency sought to claw
back the drafts, claiming attorney-client privilege.
See J.A. 1932; Oral Arg. at 9:06–10:00. Though
Mr. Siler’s discovery requests asked the agency to provide
identifying information for any documents withheld on
privilege grounds, J.A. 926; see also J.A. 854, the agency
produced no privilege log for the drafts. The Administra-
tive Judge (AJ) considered the privilege dispute at a
hearing. In colloquy, counsel for the EPA represented
that “[w]e don’t know who drafted [the drafts]. . . . I
suspect they were drafted by somebody in the HR de-
partment who assumed that Mr. Parker would be the
proposing official.” J.A. 1674. Based on these representa-
tions, the AJ ruled the drafts privileged, describing them
as “clearly protected by the attorney-client privilege,” and
noting “the Agency is not required to produce their draft
proposals. . . . because we want agencies to be very care-
ful when they decide to . . . discipline.” J.A. 1939–40.
After the hearing, the AJ affirmed the EPA’s removal
of Mr. Siler. The AJ found that Mr. Siler qualified as a
whistleblower and that his disclosures contributed to his
removal, but after considering the factors outlined in Carr
v. Social Security Administration, 185 F.3d 1318(Fed. Cir. 1999), the AJ held that the EPA would have
removed Mr. Siler even without his protected disclosures.
The AJ also determined that the agency acted reasonably
when it removed Mr. Siler. The AJ’s decision became the
final decision of the Board, see 5 C.F.R. § 1201.113, and
Mr. Siler timely sought review in this court, see 5 U.S.C.
§ 7703. He asserts that the Board erred in finding the
draft disciplinary proposals privileged and that it misap-
plied the law governing whistleblower retaliation claims
and reasonable penalties.
8 SILER v. EPA
DISCUSSION
We have jurisdiction to review the Board’s decisions.
28 U.S.C. § 1295(a)(9). We may reverse only if the deci-
sion is “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” Cobert v. Miller, 800 F.3d 1340, 1347–48
(Fed. Cir. 2015) (citing 5 U.S.C. § 7703(c)).
I
We first consider whether the Board erred in ruling
the draft notices of proposed sanctions privileged. At the
Board, “[d]iscovery covers any nonprivileged matter that
is relevant to the issues involved in the appeal.” 5 C.F.R.
§ 1201.72(b). As in district courts, a party who seeks to
withhold discovery based on privilege has the burden of
showing privilege applies. See, e.g., In re Queen’s Univ. at
Kingston, 820 F.3d 1287, 1301 (Fed. Cir. 2016) (“The
burden of determining which communications are privi-
leged and which communications fall outside the scope of
the privilege rests squarely on the party asserting the
privilege.”); Danko v. Dep’t of Def., 5 M.S.P.B. 435, 436
& n.4 (1981) (rejecting privilege claim where agency
“failed to present any evidence” and noting agency “had
the burden of showing it was privileged”). Though the
Board has no rule requiring formal privilege logs, the
Board has required the proponent of privilege “to provide
sufficient information to establish that any documents
withheld were privileged.” See, e.g., Gubino v. Dep’t of
Transp., No. AT-0752-97-0455-X-1, 2000 WL 352391,
at *5 (M.S.P.B. Mar. 24, 2000). 1
1 Moreover, in this case, Mr. Siler sought discovery
regarding “information necessary to adjudicate the pro-
SILER v. EPA 9
In this case, the agency sought to shield the draft pro-
posals from discovery based on attorney-client privilege.
The attorney-client privilege protects communications
between a client and an attorney “for the purpose of
obtaining legal advice or services.” In re Spalding Sports
Worldwide, Inc., 203 F.3d 800, 805 (Fed. Cir. 2000). An
agency may be a “client” whose communications with its
attorneys may be protected by the attorney-client privi-
lege. See, e.g., Coastal States Gas Corp. v. Dep’t of Energy,
617 F.2d 854, 863 (D.C. Cir. 1980) (“[I]t is clear that an
agency can be a ‘client’ and agency lawyers can function
as ‘attorneys’ within the relationship contemplated by the
privilege . . . .”). But as with any other client, to claim
attorney-client privilege, the agency must show that the
allegedly protected communication was made in confi-
dence, between it and its attorney, “for the purpose of
securing primarily either (i) an opinion on law or (ii) legal
services [or (iii)] assistance in some legal proceeding.”
Grimes v. Dep’t of the Navy, No. BN-1221-03-0163-B-1,
2005 WL 1523232, at *5 (M.S.P.B. June 10, 2005) (quot-
ing United States v. United Shoe Mach. Corp., 89 F. Supp.
357, 358–59 (D. Mass. 1950)); see also Zenith Radio Corp.
v. United States, 764 F.2d 1577, 1581 (Fed. Cir. 1985)
(“Any government claim of privilege should be made with
regard to specific documents . . . and specify the particular
privilege claimed and the basis for its assertion.”).
Here, the EPA made no such showing. It did not pro-
duce a privilege log or provide information—such as the
documents’ authors and recipients—that would have
allowed the Board to evaluate whether attorney-client
privilege shields the drafts. Indeed, rather than proving
that the draft proposals embody confidential attorney
priety of” any privilege claim. J.A. 926; see also J.A. 854.
The EPA did not object to this instruction. J.A. 857–76.
10 SILER v. EPA
communications, the EPA’s representations to the Board
directly undermine its privilege claim. The agency in-
formed the Board that it “d[id]n’t know who drafted” the
documents or when, and it speculated that “they were
drafted by somebody in the HR department.” J.A. 1674,
1938. Contrary to the government’s assertions, see, e.g.,
Resp’t’s Br. 55–56, the record contains no evidence that
attorneys prepared—or even saw—these draft proposals. 2
Having failed to show even the most basic aspect of
attorney-client privilege—a communication with an
attorney—the government’s privilege claim fails. And in
this case, we cannot say that the Board’s refusal to con-
sider the drafts could not have impacted the outcome of
Mr. Siler’s appeal. See, e.g., Becker v. Office of Pers.
Mgmt., 853 F.3d 1311, 1315 (Fed. Cir. 2017) (explaining
that we overturn the Board’s privilege rulings with “proof
of an error that ‘caused substantial harm or prejudice’
such that the outcome of the case could have been affect-
ed” (quoting Curtin v. Office of Pers. Mgmt., 846 F.2d
2 The government’s unyielding defense of this base-
less position troubles the court. In its brief, the govern-
ment repeatedly represented that EPA attorneys
prepared the draft proposals, citing portions of the record
that plainly do not support that contention. See, e.g.,
Resp’t’s Br. 27, 30, 55, 56, 58. At oral argument, the
government remained unable to support its position with
any record evidence and, unsurprisingly, could not align
its position with the actual record evidence—namely, that
the EPA was unable to identify the documents’ author
and had suggested “somebody in the HR department.”
J.A. 1674, 1938; Oral Arg. at 19:50–27:03, 33:35–58. But
the government nevertheless persisted. We again remind
the government that “confessing error is not a sin.” Oral
Arg. at 27:48–28:12.
SILER v. EPA 11
1373, 1379 (Fed. Cir. 1988))). We therefore reverse the
Board’s privilege ruling and remand for Mr. Siler to
receive any documents withheld as privileged over his
objection. As part of this discovery, Mr. Siler should
receive copies of any transmittal emails that accompanied
the draft proposals. He may also investigate the docu-
ments, including by reopening the record and deposing
Mr. Parker and any additional witnesses first identified
in the transmittal emails or draft proposals.
II
We next consider the Board’s decision that the EPA
would still have removed Mr. Siler had he not engaged in
whistleblowing. Whistleblower retaliation is an affirma-
tive defense. Where, as here, the government does not
dispute that whistleblowing contributed to the agency’s
decision to take adverse personnel action against an
employee, the agency must prove it would have taken the
same action absent the whistleblowing. See 5 U.S.C.
§ 1221(e)(2). Under Carr, the Board considers (1) “the
strength of the agency’s evidence in support of its person-
nel action;” (2) “the existence and strength of any motive
to retaliate on the part of the agency officials who were
involved in the decision;” and (3) “any evidence that the
agency takes similar actions against employees who are
not whistleblowers but who are otherwise similarly situ-
ated” in deciding whether the agency has met that bur-
den. Carr, 185 F.3d at 1323. If the agency fails to prove
that it would have taken the same action absent whistle-
blowing, the Board must set aside the agency’s penalty
decision and order corrective action. See 5 U.S.C.
§ 7701(c)(2)(B) (stating that “the agency’s decision may
not be sustained . . . if the employee . . . shows that the
decision was based on any prohibited personnel practice”);
see also 5 U.S.C. § 2302(b)(8) (defining whistleblower
retaliation as a “prohibited personnel practice”). The
Board has no discretion to affirm a penalty tainted by
illegal reprisal, even if the agency’s penalty might other-
12 SILER v. EPA
wise have been reasonable. See 5 U.S.C. § 7701(c)(2)(B);
Sullivan v. Dep’t of the Navy, 720 F.2d 1266, 1278
(Fed. Cir. 1983) (Nies, J., concurring) (“In an adverse
action proceeding, . . . . the merits cannot be the determi-
native factor that there was no reprisal. A meritorious
adverse action must be set aside where there is reprisal.”
(emphasis added)). Here, Mr. Siler challenges the Board’s
treatment of Carr factors 3 and 2.
Carr Factor 3
The Carr factors challenge the agency to prove that
its employee would have been punished notwithstanding
any whistleblowing. Thus, Carr factor 3 examines the
agency’s treatment of non-whistleblower employees
accused of similar misconduct. Carr, 185 F.3d at 1323.
The Board found that this factor favored the agency.
J.A. 31. It considered two potential comparators—SAC
Ashe and a Dallas employee removed for using govern-
ment equipment to view child pornography—but it found
neither sufficiently similar to make a “meaningful com-
parison.” J.A. 29–30. Instead, it found “most telling” that
the agency did not retaliate against other whistleblowers
who offered testimony against SAC Ashe. J.A. 30–31.
In considering the other Ashe whistleblowers, the
Board erred. The third Carr factor looks at “any evidence
that the agency takes similar actions against employees
who are not whistleblowers but who are otherwise similar-
ly situated.” Miller v. Dep’t of Justice, 842 F.3d 1252,
1262 (Fed. Cir. 2016) (emphases added) (quoting Carr,
185 F.3d at 1323). Though the agency’s treatment of
other whistleblowers may illuminate any motive to retali-
ate under Carr factor 2, it does not show the agency’s
treatment of non-whistleblower employees accused of
similar misconduct, the precise inquiry considered under
Carr factor 3.
The Board also erred in finding that the third Carr
factor favored the government. Once a whistleblower
SILER v. EPA 13
shows that his protected disclosures contributed to ad-
verse action against him, the agency bears the burden of
showing that it would have acted in the same way even
absent any whistleblowing. 5 U.S.C. § 1221(e)(2); Miller,
842 F.3d at 1257 (burdening the agency to prove inde-
pendent causation by clear and convincing evidence).
Though an agency need not introduce evidence of every
Carr factor to prove its case, the “risk associated with
having no evidence on the record” for a particular factor
falls on the government. Miller, 842 F.3d 1262. The
Board “may not simply guess what might happen absent
whistleblowing.” Id. It follows that where, as here, the
Board finds an absence of relevant comparator evidence,
the third Carr factor cannot favor the government.
We therefore vacate the Board’s decision and remand
for further consideration of the Carr factors. Though we
do not disturb the Board’s fact findings, on remand, the
Board should provide sufficient explanation for its conclu-
sion that SAC Ashe and Mr. Siler may not be meaningful-
ly compared. While the precise wrongdoings by SAC Ashe
and Mr. Siler differ, both men engaged in a pattern of
offenses and the same deciding official disciplined both
men for “conduct unbecoming.” We remind the Board
that “[d]ifferences in kinds and degrees of conduct be-
tween otherwise similarly situated persons within an
agency can and should be accounted for to arrive at a well
reasoned conclusion regarding Carr factor three.”
Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1373 (Fed. Cir.
2012).
Carr Factor 2
The second Carr factor requires the Board to examine
any evidence of retaliatory motive on the part of the
deciding officials. We have previously explained that both
direct and circumstantial evidence may “giv[e] rise to an
inference of impermissible intent.” Fellhoelter v. Dep’t of
Agric., 568 F.3d 965, 971 (Fed. Cir. 2009).
14 SILER v. EPA
Mr. Siler contends that the Board did not sufficiently
consider the EPA’s treatment of SAC Ashe in determining
that “none of the relevant officials . . . had a strong motive
to retaliate” under Carr factor 2. J.A. 27. The Board’s
decision contains nearly three full pages detailing the
evidence it considered in arriving at that conclusion.
J.A. 27–29. The Board noted that Mr. Siler had not
returned to full duty when he became involved in the
Ashe investigation, a fact it found supported testimony
that agency officials had concerns about Mr. Siler’s ac-
tions. J.A. 27. It explained that agency testimony re-
vealed officials considered Mr. Siler’s conduct serious, and
that although Mr. Siler was told things “looked good” for
him, “these comments were made before the . . . investiga-
tion had further developed the facts.” J.A. 27–29. And it
further found that no other Ashe whistleblowers faced
retaliation and that the EPA ultimately penalized
SAC Ashe. Id. The Board, however, did not address
whether the agency’s mild treatment of SAC Ashe sug-
gests that he was sufficiently well-liked to provide a
motive to retaliate against Mr. Siler. We do not hold that
the Board erred in its findings or that its ultimate conclu-
sion was incorrect, but on remand, the Board should
consider this issue.
III
Finally, we address the Board’s decision that the EPA
reasonably removed Mr. Siler. In determining the rea-
sonableness of the penalty imposed by an agency, the
Board considers the factors outlined in Douglas v. Veter-
ans Administration, 5 M.S.P.B. 313 (1981). Mr. Siler
assigns error to the Board’s consideration of several
Douglas factors, including the “consistency of the penalty
with those imposed upon other employees for the same or
similar offenses.” Id. at 332. Without reaching his specif-
ic arguments, we vacate this portion of the Board’s opin-
ion.
SILER v. EPA 15
Our decision on Mr. Siler’s privilege and Carr factor
challenges counsels this result. If on remand, with a
proper assessment of the Carr factors, the Board con-
cludes the agency would not have removed Mr. Siler
absent his protected disclosures, the Board must order
corrective action and the agency’s removal may not stand,
notwithstanding the Board’s Douglas analysis. See
5 U.S.C. § 7701(c)(2)(B); cf. Briley v. Nat’l Archives &
Records Admin., 236 F.3d 1373, 1378 (Fed. Cir. 2001) (“If
a plaintiff establishes a prima facie case of retaliation for
whistleblowing, corrective action must be ordered unless
‘the agency demonstrates by clear and convincing evi-
dence that it would have taken the same personnel action
in the absence of such disclosure.’” (emphasis added)
(quoting 5 U.S.C. § 1221(e)(2))). And if on remand the
Board concludes otherwise, it may need to analyze the
Douglas factors in light of additional evidence that
emerges from the further discovery we have ordered. Of
course, if Mr. Siler presents no new relevant evidence, the
Board may reaffirm its existing analysis, which may be
subject to a new appeal.
CONCLUSION
Having found the parties’ remaining arguments un-
persuasive, we vacate the Board’s decision and remand
for further proceedings consistent with this opinion.
VACATED AND REMANDED
COSTS
Costs to Petitioner.