Miller v. Department of Justice
842 F.3d 1252
| Fed. Cir. | 2016Background
- Troy Miller, Superintendent of Industries (GS-13) at a federal prison UNICOR factory that made ballistic helmets, reported alleged fund mismanagement (Oct 2009) and a December 2009 "sabotage" involving rejected Kevlar on the production line. He urged stopping production.
- The DOJ Office of Inspector General (OIG) visited the factory; Warden Upton testified OIG directed that Miller be removed from the factory during the investigation and later indicated Miller was a subject.
- On December 16, 2009, shortly after Miller’s sabotage disclosure, Warden Upton reassigned Miller out of the Superintendent role; over the next 4.5 years Miller was moved to lower-level, often menial or unworked assignments, though he retained GS-13 pay.
- Miller appealed to the Merit Systems Protection Board under the Whistleblower Protection Act (IRA appeal), and the Board found Miller’s disclosures were protected and contributed to his reassignment but concluded the Government proved independent causation by clear and convincing evidence.
- On appeal to the Federal Circuit the court reviewed whether substantial evidence supported the Board’s finding that the Government met its high burden to show it would have taken the same personnel actions absent Miller’s protected disclosures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Miller’s disclosures were protected and contributed to his reassignment | Miller: October and December disclosures were WPA-protected and contributed to reassignment | Govt: does not dispute the Board’s finding that disclosures were protected and contributing factors | Court: Board’s uncontested finding that disclosures were protected and contributed stands (government bore burden to rebut) |
| Whether the Government proved by clear and convincing evidence it would have reassigned Miller absent disclosures (independent causation) | Miller: Gov’t evidence (primarily Warden’s testimony about OIG direction) is weak and uncorroborated; thus Gov’t failed its burden | Govt: Warden Upton’s credible testimony that OIG asked removal to protect investigation suffices to show independent causation | Held: Reversed — substantial evidence does not support Board’s finding; Govt failed to meet clear and convincing standard |
| Strength of agency evidence (Carr factor 1) | Miller: Agency presented only Warden testimony, no OIG testimony or documentary records; record shows Miller was an outstanding employee, undermining agency’s theory | Govt: Warden’s consistent testimony and Miller’s own testimony support non-retaliatory reason | Held: Factor 1 does not favor Govt — Warden’s conclusory testimony alone is not strong evidence of independent causation |
| Motive and comparative treatment (Carr factors 2 & 3) | Miller: OIG’s role and motive were not explored; Govt produced no evidence of similar treatment of non-whistleblowers | Govt: Warden had non-retaliatory motive (protect investigation); similar-treatment evidence unnecessary | Held: Factor 2 may marginally favor Govt but factor 3 lacks evidence and may cut against Govt; overall Govt failed to meet its burden |
Key Cases Cited
- Whitmore v. Dep’t of Labor, 680 F.3d 1353 (Fed. Cir.) (describing burden-shifting framework and high burden on agency to rebut whistleblower prima facie case)
- Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir.) (identifies three nonexclusive factors for assessing independent causation)
- Price v. Symsek, 988 F.2d 1187 (Fed. Cir.) (defines clear and convincing evidence standard)
- Kewley v. Department of Health & Human Services, 153 F.3d 1357 (Fed. Cir.) (discusses independent causation review)
- Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197 (explains substantial evidence standard)
- Buildex, Inc. v. Kason Indus., Inc., 849 F.2d 1461 (Fed. Cir.) (comparative description of evidentiary burdens)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (discusses consideration of evidence that detracts from weight in substantial-evidence review)
- Eli Lilly & Co. v. Aradigm Corp., 376 F.3d 1362 (Fed. Cir.) (notes interaction between burden of proof and substantial-evidence review)
- Staub v. Proctor Hosp., 562 U.S. 411 (Sup. Ct.) (discusses Cat’s Paw theory where one actor’s bias can be imputed to decision-maker)
- Jacobs v. Dep’t of Justice, 35 F.3d 1543 (Fed. Cir.) (substantiality of evidence must account for record that detracts from its weight)