# Miller v. Department of Justice > Court of Appeals for the Federal Circuit · December 2, 2016 · 842 F.3d 1252 URL: https://www.frixlaw.com/law-library/cases/9869917 ## Case - **Full name:** Troy W. MILLER, Petitioner v. DEPARTMENT OF JUSTICE, Respondent - **Court:** Court of Appeals for the Federal Circuit - **Decided:** December 2, 2016 - **Citations:** 842 F.3d 1252; 41 I.E.R. Cas. (BNA) 1464; 2016 U.S. App. LEXIS 21512; 2016 WL 7030359 - **Precedential status:** Published - **Opinion:** Concurrence by Reyna - **Judges:** Reyna, Hughes, Stoll - **Cited by:** 103 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9869917 ## How later opinions describe it (automated extraction) - finding that the agency did not prove by clear and convincing evidence that it would have taken the same action absent the appellant’s protected disclosure when, although it produced some evidence regarding a lack of motive to retaliate, the strength in su pport of its action … - stating that, in the absence of evidence that the agency’s treatment of the appellant is comparable to similarly situated employees who are not whistleblowers, “the court may not simply guess what might happen absent whistleblowing. The burden lies with the Government.” - stating that the Government’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 (quoting Whitmore, 680 F.3d at 1374 ) - explaining that the second Carr factor should be evaluated “more generally” because the factor is directed at agency officia ls involved in making the decision, not just at the employee’s direct supervisor - explaining that, where an agency presented little or weak evidence for the first two Carr factors, the lack of evidence for Carr factor 3, “if anything, tends to cut slightly against the Government” ## Opinion text 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 decision-maker here. - ■ A “Cat’s Paw” theory applies when an individual with knowledge of the protected disclosure influences another official to reassign the employee. Thus, the official making the reassignment is simply channeling the wishes of the defacto decision-maker. 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 , 131 S.Ct. 1186 , 179 L.Ed.2d 144 (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 Upton’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 *1265 command. Id. at 1371 . Instead, the Board should consider the possible retaliatory-motives 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 whistleblowers. 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. . 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 Jacobs v. Dep’t of Justice, 35 F.3d 1543, 1546 (Fed. Cir. 1994) (“The substantiality of evidence must take into account whatever in the record fairly detracts from its weight.”). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9869917. Public record. Not legal advice.