Miller v. Department of Justice

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.