Miller v. Dep't of Justice

• Citation: 842 F.3d 1252
• Decision Date: 02 December 2016
• Docket Number: 2015-3149
• Parties: Troy W. Miller, Petitioner v. Department of Justice, Respondent
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

842 F.3d 1252

Troy W. Miller, Petitioner
v.
Department of Justice, Respondent

2015-3149

United States Court of Appeals, Federal Circuit.

Decided: December 2, 2016

Dennis L. Friedman , Philadelphia, PA, argued for petitioner.

Robert Norway , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by Benjamin C. Mizer , Robert E. Kirschman, Jr , Allison Kidd-Miller .

Before Reyna, Hughes, and Stoll, Circuit Judges.

Concurring opinion filed by Circuit Judge Reyna.

Dissenting opinion filed by Circuit Judge Hughes.

Stoll, Circuit Judge.

Troy Miller appeals the decision of the Merit Systems Protection Board denying him relief for a personnel action taken by the Department of Justice. The Board held that Mr. Miller met his burden of showing that certain disclosures he made, found by the Board to be protected under the Whistleblower Protection Act, contributed to his reassignment. The Board further held, however, that the Government successfully rebutted Mr. Miller's prima facie case by showing independent causation for the personnel action. Because the Board's decision is not supported by substantial evidence, we reverse.

BACKGROUND

I.

Mr. Miller worked as the Superintendent of Industries, level GS-13, at the Federal Correctional Complex, Beaumont, Texas. In this capacity, Mr. Miller oversaw a prison factory that produced ballistic helmets primarily for military use. He held significant responsibilities as Superintendent of Industries, including: managing the factory budget; executing contracts with outside suppliers; hiring, training, and overseeing inmate staff; and developing and maintaining production schedules. Performance reviews lauded Mr. Miller for taking the initiative to coordinate delivery schedules with outside vendors—a task normally performed by central office professionals—and for spearheading a business partnership with an outside armor outfitter.

UNICOR, a Government-owned corporation, operated the prison factory, but Mr. Miller worked for the Federal Bureau of Prisons within the Department of Justice, as did his direct supervisor, prison warden Jody Upton. Mr. Miller, along with the associate warden and the warden's captain, served on Warden Upton's executive staff. As a member of the Warden's executive staff, Mr. Miller drafted prison security reports sent to the regional office and responded to security incidents at the Beaumont facility, as well as other correctional facilities. He was also on rotation every six weeks to serve as the prison's acting administrative duty officer and he chaired the Inmate Issues Committee, where he was a conduit between inmates

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and Warden Upton, relaying inmate concerns to the warden and providing the warden's feedback to the inmates. In Warden Upton's absence, Mr. Miller occasionally filled in as an associate warden. Reflecting on Mr. Miller during his testimony in this case, Warden Upton described Mr. Miller as "a fantastic employee" who was "very on top of things" and with whom he had "absolutely no concerns," a sentiment reflected in Warden Upton's performance evaluations of Mr. Miller. J.A. 90–92.

On October 7, 2009, Mr. Miller disclosed to individuals at UNICOR and to Warden Upton what he perceived to be mismanagement of funds at the factory. Warden Upton testified that he received a phone call in mid-to late-October 2009 from the DOJ Office of Inspector General ("OIG") explaining that there had been reports of impropriety at the factory, but Warden Upton could not recall with whom at OIG he spoke. On December 15, 2009, OIG conducted an on-site visit to the factory as part of an investigation into the factory's operations and purported misconduct. Warden Upton asked Mr. Miller to not report to the factory on that day, relaying to him that the investigators did not want the factory staff to feel uncomfortable or intimidated by having their supervisor, Mr. Miller, present during the OIG visit.

On December 16, 2009, the day following OIG's factory visit, Mr. Miller reported to Warden Upton and others that there had been a "sabotage" at the factory, with rejected Kevlar® material having been placed on the production line. J.A. 162. Mr. Miller testified that constructing a helmet using rejected material would seriously compromise the helmet's ability to withstand projectile impact and thus would endanger the lives of soldiers outfitted in such helmets. Mr. Miller testified that "why I did what I did is there's a U.S. Marine's life at the end of this helmet, period. And it is my responsibility as a superintendent of industries when I see anything that is wrong, to report it immediately and to stop production." J.A. 276. Mr. Miller urged that the factory be closed pending an investigation of the alleged factory sabotage.

Several hours after the sabotage disclosure, Warden Upton informed Mr. Miller that he was being reassigned from the factory and would no longer serve as Superintendent of Industries. Without identifying any specific individual, Warden Upton testified that some person or persons working for OIG had directed him to reassign Mr. Miller. OIG had become concerned, testified Warden Upton, that Mr. Miller might compromise its investigation by remaining at the factory. Warden Upton testified that because Mr. Miller did not "technically work for me in the operational aspect, I contacted UNICOR's central office, as well as my regional director" and "[a] decision was made the following day that [Mr. Miller] would need to be removed from the factory." J.A. 101. Warden Upton further testified that, at some point later, OIG "made it clear that Mr. Miller was actually one of the subjects of the investigation," although he could not recall during his testimony when OIG disclosed this information to him. J.A. 99.

Over the next four and a half years, Mr. Miller was assigned to various lower-level positions which, unlike the Superintendent of Industries position, were not on the Warden's executive staff.¹ Mr. Miller's various

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duties, during the times when he was assigned work, included: monitoring inmate phone calls for criminal activity; assisting with the prison's food service by wiping tables and observing inmates as they cleaned floors; performing clerical work, such as shredding documents; and working the night shift in the special housing unit.² Warden Upton testified that he moved Mr. Miller from one assignment to the next several times at the behest of OIG. Warden Upton testified that OIG began to fear that placing Mr. Miller in any position with inmate exposure presented a threat to the investigation. For example, Warden Upton testified that OIG believed Mr. Miller had been conversing with inmates during his food service detail and that Mr. Miller chose to monitor the phone calls of inmates who worked in the factory during his phone detail, which the Warden's staff was able to find some supporting correlative evidence of by examining phone records. Warden Upton again did not reveal the identity of any specific OIG employee with whom he spoke or provide OIG's specific justification for fearing that Mr. Miller would threaten the investigation.

Eventually, Warden Upton reassigned Mr. Miller out of the medium-security prison facility altogether and to an administrative building on the prison premises. While there, Mr. Miller was told to sit on a couch in the building lobby without being given any work to perform, which he did for eight months. He later received an office, but continued to have no work assigned to him. He remained on the GS-13 payscale all the while, yet Warden Upton testified that putting him in these positions was "absolutely" a waste of his talents.

II.

Mr. Miller brought an individual right of action ("IRA") appeal to the Board, alleging that the DOJ's actions against him violated the Whistleblower Protection Act ("WPA"). Particularly, Mr. Miller asserted that he made protected whistleblower disclosures under 5 U.S.C. § 2302(b)(8) and that they contributed to his effective reassignment out of the Superintendent of Industries position, which he contended was a personnel action under 5 U.S.C. § 2302(a)(2)(A). Mr. Miller claimed as protected his October 2009 fund-mismanagement disclosure and his December 2009 factory-sabotage disclosure.

The Administrative Judge agreed with Mr. Miller that both his October 2009 and December 2009 disclosures were protected under § 2302(b)(8). The A.J. also found that, applying the 5 U.S.C. § 1221(e)(1)"knowledge/ timing" test, Mr. Miller's disclosures contributed to his reassignment, which the A.J. found to be a personnel action under § 2302(a)(2)(A). Because the A.J. found that Mr. Miller made a protected disclosure and suffered an adverse personnel action, the burden shifted to the Government to show by clear and convincing evidence that it would have reassigned Mr. Miller regardless of his protected disclosures. The A.J. found that the Government met this burden. The A.J. relied almost entirely on testimony from Warden Upton in reaching this finding. The Government had also presented one of Mr. Miller's supervisors at UNICOR, Brad Beus, as a witness, but the Government presented no testimony or documentary evidence from OIG, the group Warden Upton...