News from the Federal Circuit: On December 2, 2016, a divided panel of the U.S. Court of Appeals for the Federal Circuit issued its decision in Miller v. Dept. of Justice, No. 2015-3149. The court reversed the decision of the Merit Systems Protection Board (MSPB), and held that the Agency had failed to prove “independent causation” for Mr. Miller’s reassignments.
Mr. Miller supervised a prison factory producing helmets for the military. Mr. Miller disclosed mismanagement of funds, and then later disclosed alleged sabotage at the factory. Within hours of the ‘sabotage’ disclosure, Mr. Miller was reassigned to alternate duties by the warden, allegedly at the request of the Office of Inspector General (OIG) due to supposed concerns that Mr. Miller would interfere with OIG’s investigation. Mr. Miller was then reassigned repeatedly over the following 4 1/2 years to low-level positions by the warden, ultimately being reassigned to another facility with no duties (including 8 months where he was directed to sit all day on a couch in the lobby).
Mr. Miller filed a whistleblower reprisal complaint, and then filed an Independent Right of Action (IRA) appeal at the MSPB. The MSPB found that Mr. Miller had made protected disclosures, but found that the Agency had met its burden of showing independent causation for the reassignments. The sole evidence of the OIG reassignment request at hearing was the warden’s testimony. Mr. Miller then appealed to the Federal Circuit.
The majority held that the Agency had failed to show independent causation, finding the MSPB’s holding below unsupported by substantial evidence. The majority held, on the particular facts of this case, that the warden’s testimony in this case was insufficient to show independent causation–especially as that testimony was inconsistent with Mr. Miller’s performance evaluations and the warden’s own testimony concerning Mr. Miller. The majority also held that the MSPB underweighted the fact that the warden would have been negatively impacted by the subject matter of Mr. Miller’s disclosures. The majority faulted the MSPB for not making findings about the OIG’s possibly retaliatory motive. The court remanded the case for further proceedings, including determination of remedies for Mr. Miller.
In concurrence, Judge Reyna elaborated that the OIG’s role should be examined under a “cat’s-paw” analysis. In dissent, Judge Hughes accused the majority of credibility determinations without deferring to the administrative judge, and of requiring corroboration for management independent causation testimony. Judge Hughes lamented that the majority “failed to appreciate the impact” that reversal would have on the Agency and on the warden.
If you are a federal employee and you believe that you have suffered whistleblower reprisal, please feel free to contact Passman & Kaplan to request an initial consultation.