In Miller v. Department of Justice (CAFC No. 2015-3149, 12/2/16), the appeals court was not buying the government’s argument that it had proved it would have reassigned the whistleblower regardless of his protected activity in blowing the whistle twice.
According to the court’s opinion, Mr. Miller was a GS-13 Superintendent of Industries at the Beaumont, Texas Federal Correctional Complex, and as such was on the Warden’s executive staff. He had a string of outstanding ratings (“a fantastic employee;” “very on top of things;” absolutely no concerns;” etc. were words used in some of these) and was highly regarded by his boss, Warden Upton. The court’s decision goes into detail as to Miller’s numerous high-level responsibilities at Beaumont. Significantly he oversaw a prison factory that produced military helmets, although the factory itself was run by UNICOR, a government-owned outfit.
Miller made what the Merit Systems Protection Board later found were protected whistleblower complaints about possible mismanagement of funds at the factory, and quality issues that involved using inferior product in helmets, making their suitability for military use questionable.
The agency Office of Inspector General opened an investigation at the complex, but for reasons never really explained did not want Miller around when they were investigating. OIG told Warden Upton that he should move Miller into a place where he could not hear of or be involved in its investigation. The Warden did just that. Over a four-and-a-half year period, Miller was moved from job to job until he spent about 8 months sitting on a sofa with nothing to do. (pp.3-5) (His sojourn from job to job is described in the court’s opinion.)
Eventually fed up, Miller went to the MSPB and charged DOJ with violating the Whistleblower Protection Act (WPA).
The Board did in fact find that Miller had engaged in protected activity under the WPA; however, it concluded that the agency had offered sufficient evidence to meet its burden of proof that it would have reassigned Miller in any event.
As it turns out, the evidence supporting the government’s position was testimony from Warden Upton. He testified that OIG ordered him on several different occasions to move Miller from one place or the other so he could not interfere with the OIG investigation. When told to do it, Upton simply complied. He testified he could not remember which OIG officials made these requests, nor could he explain why they wanted Miller moved. At the MSPB hearing, no one from OIG testified.
Apparently simply complying with non-specific requests from OIG was not enough to explain away the actions taken against a whistleblower. As the court noted, “…Warden Upton’s conclusory testimony about OIG’s statements is not made more sufficient or clear and convincing simply by being repeated several times….The Government’s evidence is weak, particularly when considered in light of the record evidence endorsing Mr. Miller’s character.” (p. 13)
As for OIG involvement, this passage from the court’s decision is of interest: “We also find it concerning that the A.J. made a finding regarding Warden Upton’s retaliatory motive, but none regarding OIG’s motive. … Considering that…it was OIG that purportedly directed the Warden to reassign Mr. Miller, it would seem important in this case to examine whether one could impute a retaliatory motive to OIG.” (p. 17)
In short, the court concluded that the Board’s finding that the government made its case is not supported by substantial evidence, and reverses MSPB, sending the case back “for further proceedings including determination of the remedy appropriate for the improper personnel action.” (p. 21) Moreover, the court awards costs to Mr. Miller.
This adds up to a bad day for the Department of Justice and for the MSPB, not to mention the agency OIG.