shaw bransford & roth case law update

Federal Circuit: EPA Made “Baseless” Claim of Attorney-Client Privilege to Protect Draft Notices of Proposed Disciplinary Actions

Written by FEDmanager on .

Recently, the Court of Appeals for the Federal Circuit reversed a decision of an Merit System Protection Board Administrative Judge, and found that the EPA made no evidentiary showing to prove its claim of the attorney-client privilege to prevent the discovery of draft proposed disciplinary actions.  

Matthew Siler served as an EPA Special Agent in the Office of Criminal Enforcement, Forensics, and Training (OCEFT) investigating criminal violations of environmental law from 1997 to 2016. During this time, Siler also operated a personal business selling military collectibles and firearms. In violation of EPA rules, Siler did not report this business to the EPA and used his government computer for his personal business.

In 2014, Siler obtained AK-47 part kits and contracted for the kits to be assembled into operational rifles. Siler was dissatisfied with the contractor’s work, recovered the part kits, and parked the van loaded with the AK-47 part kits in EPA parking overnight.

After retrieving the part kits, Siler received an email from the contractor that itemized Siler’s costs. Siler responded and demanded the return of his deposit, stating: “there are severe criminal and civil penalties for your actions …. I am fully prepared to turn my evidence of these firearms offenses over to the proper authorities … should you elect not to return my money.” In May 2014, after receiving Siler’s email, the contractor filed a complaint with the Bureau of Alcohol, Tobacco, Firearms and Explosives.

Thereafter, EPA’s Office of Inspector General (OIG) investigated the complaint, and the EPA placed Siler on administrative leave. In January 2015, OIG cleared Siler of criminal charges, and transmitted its report to OCEFT for administrative review. Siler then returned to work on light duty.

In June 2015, Siler was involved in an investigation into his second-line supervisor, Special Agent in Charge Randall Asche. The investigation involved allegations that Asche harassed a female employee and commented on her appearance, mimed hitting Siler with a box, and slept at his desk at work. The EPA interviewed employees who witnessed Asche’s behavior, including Siler. In his interview, Siler expressed fear of retaliation for participating in the interview. He then stated that Asche was sleeping at his desk and smelled of alcohol while on duty. In August 2016, after the EPA concluded its investigation, it imposed a 14-day suspension on Asche. Asche retired prior to serving the suspension.

On July 15, 2015, about two weeks after EPA leadership received Siler’s statement, it met and initiated a supplemental administrative investigation into Siler’s personal business and 2014 contract dispute. The investigation concluded that Siler engaged in conduct unbecoming a criminal investigator by threatening a criminal report unless money was refunded to him and by parking his AK-47 parts on EPA property overnight; improperly used his government computer for outside business; and failed to report his outside business. The EPA proposed Siler’s removal, and sustained the proposed removal 11 months shy of Siler’s eligibility for retirement.

Siler appealed the EPA’s removal decision to the Merit System Protection Board, and argued that removal was not a reasonable penalty and his statements about Asche were protected whistleblowing that caused the EPA to retaliate against him. In discovery, the EPA produced undated draft notices of proposed disciplinary actions against Siler, one suggesting Siler should be suspended. Siler sought the transmittal emails related to these drafts, and the EPA sought to claw back the drafts, claiming the attorney-client privilege. The EPA did not provide Siler a privilege log to support its claim of privilege.

The MSPB’s Administrative Judge (AJ) considered the privilege dispute at hearing. Despite asserting a privilege in discovery to avoid producing the requested information to Siler, counsel for the EPA represented that it did not know who prepared the draft notices, and suspected they were prepared by the HR department. The AJ then ruled the drafts privileged. After the hearing, the AJ affirmed the removal decision. The AJ found that Siler qualified as a whistleblower whose disclosures contributed to removal, but that the EPA would have removed Siler even without his protected disclosures.

The AJ’s decision became the final decision of the Merit System Protection Board, and Siler sought review in the U.S. Court of Appeals for the Federal Circuit. Siler asserted that the Board erred in finding the draft disciplinary proposals privileged and that it misapplied the law governing whistleblower retaliation claims.

The Federal Circuit first considered whether the Board erred in ruling the draft notices of proposed disciplinary actions were privileged. The court noted that as in district courts, a party who seeks to withhold discovery based on privilege has the burden of showing privilege applies. Indeed, the Board has required the proponent of privilege to provide “sufficient information to establish that any documents withheld were privileged.”

The EPA sought to shield the draft proposals based on attorney-client privilege. As the court explained, the attorney-client privilege protects communications between a client and an attorney for the purposes of obtaining legal advice or services. The court further explained that in the attorney-client context an agency may be a client whose communications with its attorneys may be protected by the privilege. However, the court admonished, to claim the privilege an agency must still show that the protected communication was made in confidence for the purpose of securing legal advice or services.

Here, the court of appeals held the EPA made no showing that the communications it sought to protect were made in confidence to secure legal advice or services. It did not produce a privilege log or provide information that would have allowed the Board to evaluate whether an attorney-client privilege should shield the drafts. In fact, the court admonished that the EPA’s representations to the Board undermine its privilege claim. The EPA informed the Board it did not know who drafted the documents and speculated it was the HR department. Thus, the court held no record evidence shows that an attorney prepared or even saw the draft proposals.

The court found the EPA’s “unyielding defense” of its claim of privilege to be “troubl[ing],” and admonished the government for repeatedly asserting a “baseless” position. The court of appeals referenced the government’s brief, which asserted that EPA attorneys prepared the draft proposals, but cited to portions of the record that did not support this position. The court also referenced the government’s assertion of the privilege at oral argument, stating it was unsurprised that the government “could not align its position with the actual record evidence” – that the EPA could not identify the author of the draft proposals and speculated that someone in its HR department drafted the documents. Concerned with the government’s persistent assertion of its defense to prevent Siler’s use of the draft proposals, the court found it necessary to remind the government that “confessing error is not a sin.”

The Federal Circuit reversed the Board’s privilege ruling and remanded the case so that Siler could receive any documents withheld as privileged over his objection.

Next week’s Case Law Update will report on the Federal Circuit’s review of the Board’s decision on Siler’s whistleblower retaliation defense.

Read the full case: Siler v. EPA

This case law update was written by  Michael J. Sgarlat, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update