Siler v. Envtl. Prot. Agency, 908 F.3d 1291

Background

Matthew Siler, an EPA criminal investigator, ran an undisclosed private business selling firearms parts and admitted using his government computer for that business; EPA initiated an administrative investigation after a 2014 dispute.
Siler provided statements (and a photo he later deleted) reporting inappropriate conduct by his supervisor, SAC Randall Ashe; Ashe was later investigated and suspended for misconduct.
Shortly after Siler’s protected disclosures about Ashe, EPA opened a supplemental investigation into Siler and proposed removal for conduct unbecoming, misuse of government equipment, and failure to disclose outside employment.
At the MSPB hearing, EPA withheld undated draft notices of proposed sanctions claiming attorney-client privilege but produced no privilege log; agency counsel even stated uncertainty about the drafts’ authorship.
The Administrative Judge found Siler’s disclosures were protected but applied Carr factors and Douglas factors to conclude EPA would have removed Siler regardless and that the penalty was reasonable; the Board sustained removal.
On appeal, the Federal Circuit vacated and remanded: it rejected EPA’s privilege claim for the drafts, and found errors in the Board’s Carr factor analysis (both factor 3 comparators and factor 2 motive), and vacated the Douglas/penalty ruling for reconsideration after further discovery.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether draft notices of proposed sanctions were protected by attorney-client privilege	Siler: drafts are relevant discovery and EPA failed to prove privilege (no log, no attorney involvement shown)	EPA: drafts are privileged communications reflecting legal deliberations	Held: EPA failed to meet burden; privilege finding reversed and remanded for production and further discovery
Whether EPA proved it would have removed Siler absent his protected whistleblowing (Carr factor 3—comparators)	Siler: Board lacked non-whistleblower comparators; EPA produced no meaningful similar-employee evidence	EPA: pointed to other discipline decisions and argued comparators were not sufficiently similar	Held: Board erred—misapplied Carr factor 3; absence of comparator evidence cannot favor agency; remand required for proper analysis
Whether agency officials had retaliatory motive (Carr factor 2)	Siler: agency’s lenient treatment of Ashe and other facts support inference of retaliatory motive	EPA: officials lacked motive; they investigated Ashe and disciplined him; other Ashe witnesses were not punished	Held: Board did not fully consider whether mild treatment of Ashe could indicate motive; remand to reassess factor 2 alongside factor 3
Whether the penalty (removal) was reasonable under Douglas factors	Siler: penalty inconsistent with treatment of similarly situated employees and tainted by reprisal	EPA: removal was reasonable given misconduct severity	Held: Because of errors on privilege and Carr factors, Douglas analysis vacated; penalty must be reconsidered on remand (and may be moot if reprisal is found)

Key Cases Cited

Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir. 1999) (framework for agency proving it would have taken same action absent whistleblowing)
Becker v. Office of Personnel Management, 853 F.3d 1311 (Fed. Cir. 2017) (Board privilege rulings reversed when error caused substantial prejudice)
Miller v. Department of Justice, 842 F.3d 1252 (Fed. Cir. 2016) (agency bears risk where record lacks evidence on Carr factors)
In re Spalding Sports Worldwide, Inc., 203 F.3d 800 (Fed. Cir. 2000) (definition and scope of attorney-client privilege)
Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C. Cir. 1980) (government agency may be a client for attorney-client privilege)
Zenith Radio Corp. v. United States, 764 F.2d 1577 (Fed. Cir. 1985) (government privilege claims must identify documents and privilege basis)
Cobert v. Miller, 800 F.3d 1340 (Fed. Cir. 2015) (standard of review for MSPB decisions)