MSPB decision reversed by the US Court of Appeals

Dec 13, 2016

MSPB judge

A December 7, 2016 article in  News from the Federal Circuit commented that the U.S. Court of Appeals for the Federal Circuit has issued its decision in Miller v. Dept. of Justice, No. 2015-3149 in which it reversed the decision of the Merit Systems Protection Board (MSPB), and held that the Agency had failed to prove “independent causation” for a federal employee’s reassignments.

The Case of Reassignments and Allegations

Within hours of Miller disclosure mismanagement of funds and sabotage, he was reassigned to alternate duties by his supervisor at the request of the Office of Inspector General (OIG) due to supposed concerns that he would interfere with the OIG’s investigation. Miller was then reassigned repeatedly over the following 4 1/2 years to low-level positions, ultimately being reassigned to another facility with no duties (including 8 months where he was directed to sit all day on a couch in the lobby).

Legal Battle and Whistleblower Protections

Miller filed a whistleblower reprisal complaint and then filed an Independent Right of Action (IRA) appeal from the MSPB decision that although he had made protected disclosures, the Agency had met its burden of showing independent causation for the reassignments.  The only evidence of the OIG reassignment request at the hearing was from the supervisor.

The Federal Circuit’s Findings and Implications

The Federal Circuit held that the Agency had failed to show independent causation, finding the MSPB’s holding below unsupported by substantial evidence.  The majority held, on the particular facts of this case, that the supervisor’s testimony, in this case, was insufficient to show independent causation–especially as that testimony was inconsistent with Miller’s performance evaluations and the supervisor’s own testimony concerning Miller.  They also held that the MSPB underweighted the fact that the supervisor would have been negatively impacted by the subject matter of Miller’s disclosures.  They faulted the MSPB for not making findings about the OIG’s possibly retaliatory motive.   So now the case has been sent back to the MSPB for further proceedings, including determination of remedies for Mr. Miller.

Conclusion and Recommendations

This case is distinctive as (1) the OIG was “attached” to the agency with regard to motive, (2) it did not “rubber stamp” the credibility determinations made by the MSPB administrative judge, and (3) it required corroboration for management independent causation testimony.

Brad’s Tip:  Agencies have won employment disputes at the MSPB on many occasions simply by controverting the employee, but here’s a rare and recent case that did not agree with the Agency/OIG slam.  Perhaps there is some hope for federal employees!

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