Appeals Court: MSPB Whistleblower Decision Not Supported by Substantial Evidence
The United States Court of Appeals for the Federal Circuit, the reviewing court of the Merit Systems Protection Board, reversed a Board decision denying relief for a personnel action taken by the Department of Justice, finding that the Board’s decision was not supported by substantial evidence.
A GS-13 Federal Correctional Complex Superintendent reported alleged financial improprieties in October 2009, which were investigated by the Department of Justice’s Office of Inspector General in December 2009. But the day after the OIG’s visit, the employee reported that an individual had sabotaged production at his workplace (a factory that manufactured ballistic helmets) by placing faulty Kevlar on the production line, and asked that production be halted. The employee’s supervisor reassigned him several hours later, allegedly at the request of the OIG. The employee was given lower-level assignments for the next four-and-a-half years, including an assignment that left him without any duties for eight months. The employee exhausted his remedies with the Office of Special Counsel, and after his case was closed by OSC, he filed an Individual Right of Action appeal with the Merit Systems Protection Board.
While the Board found that the employee’s disclosures about financial issues and sabotage were protected, and that those disclosures were a contributing factor in his reassignment due to the knowledge/timing test regularly employed in corrective action cases, the Board found that the Agency had satisfied its burden of proving by clear and convincing evidence that it would have reassigned the employee regardless of his disclosures, and so denied the employee’s request for corrective action. The employee appealed to the United States Court of Appeals for the Federal Circuit. On December 2, 2016, the appeals court reversed the Board’s decision.
The appeals court noted that Board evaluations of whether the government has successfully rebutted an employee’s prima facie case by demonstrating by clear and convincing evidence the independent causation of the personnel action are conducted using the three Carr factors. In Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), the court stated that the strength of the agency’s evidence in support of its personnel action, the existence and strength of any motive to retaliate on the part of the agency officials involved in the decision, and any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated will be considered in deciding whether the agency’s evidence is clear and convincing.
Because lack of “substantial evidence” to support a Board decision is one of the three statutory methods for the appeals court to overturn a Board decision, and given the interplay between “substantial evidence” and the burden of proof during the underlying case (in this case, “clear and convincing evidence”) the appeals court noted that substantial evidence is “not a fixed quantum of evidence: 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.” The court observed that a decision might be affirmed if the standard of proof in the trial court is lower, and might be reversed if the standard of proof in the trial court is higher, even though the “substantial evidence” standard would appear to be static.
In consideration of the first Carr factor, the strength of the Agency’s evidence, the court found that no reasonable factfinder could find the testimony of the warden, which the agency relied upon almost exclusively, to be strong evidence of independent causation, given that “a considerable amount of the relied-on testimony consisted of [the warden’s] recollection of things OIG told him” and because the testimony was conclusory.
The appeals court went on to state that “[t]o reach the conclusion the Government suggests—that OIG directed the reassignment of [the employee] to various menial jobs and ultimately the couch for four and a half years for fear that he would interfere with an investigation allegedly targeting him—a reasonable fact finder would have to conclude that [the employee] made his protected disclosures as part of a cover-up. The record is devoid of any evidence supporting such a theory. To the contrary, the record demonstrates that [the employee] 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 appeals court concluded that despite the warden’s testimony being offered as the only evidence supporting the unusual basis for the employee’s multi-year reassignment directly following his protected disclosures, the warden could not testify as to significant details. The appeals court reminded the parties in its decision that its evaluation is not based on whether the government presented evidence, but based on the strength of any evidence presented. Because the appeals court found that the government did not present strong evidence of independent causation of the reassignments, it found that the first Carr factor could not be ruled in favor of the Government.
The appeals court also noted that it was “concerning” that the administrative judge made a finding regarding the warden’s lack of retaliatory motive, but none regarding the motive of the Office of Inspector General,” as Carr’s language asks that retaliatory motive be assessed for “agency officials who were involved in the decision,” and not just the employee’s direct supervisor. Because there was evidence that OIG requested that the employee be reassigned, they were agency officials involved in the decision, according to the appeals court.
Addressing the agency’s narrow litigation approach to the third Carr factor (“any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated”), the appeals court observed that the Government introduced “no evidence as to what actions it takes against other DOJ employees during OIG investigations despite this factor being directed to the ‘agency’ rather than to a particular supervisor at a particular Federal Bureau of Prisons facility.” Because the Government bore the risk associated with a lack of evidence on record for this factor, especially given its advantage in accessing this type of evidence, the appeals court found that this Carr factor “cut slightly against the Government.”
For the above stated reasons, and considering the record as a whole, the United States Court of Appeals for the Federal Circuit reversed the decision of the Merit Systems Protection Board, and remanded the case for further proceedings, including a determination of the approprirate remedy for the improper personnel action.
Read the full case: Miller v. Department of Justice
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