By William Wiley, December 19, 2016

Just last week, we wrote about a decision from the federal circuit that we said reflected a lack of understanding as to how a federal agency operates. In case you’ve already forgotten due to excessive pre-Christmas festivating, the Federal Circuit faulted an agency because it did not notify the employee in a proposal-to-remove notice that a senior manager had told the proposing and deciding officials that if the employee had done what was alleged, “we need to try and terminate her.” Federal Education Association v. DoD Schools, Fed. Cir. No. 2015-3173 (November 18, 2016). There was no indication that this communication actually impacted the decision to remove the employee. No finding that the communication was otherwise improper. Just a ruling that such pre-decisional communication has to be disclosed to the employee because it “was likely to result in undue pressure on the Deciding Official.”

As we pointed out in our newsletter, these sorts of communications occur all the time in federal agencies. And one could argue that just about any affirmative communication from a senior manager might be likely to result in pressure on lower level supervisors. In fact, pressuring lower level supervisors into action could be argued to be the first sentence in a senior manager’s position description. Some might even call that “leadership.” And “undue”? Every reader of this article is about to get a new political overlord, henceforth known for all eternity as a “Trumpette”© (copyright FELTG 2016). So, when the Trumpettes© take control and start issuing missives that bad employees should be removed if they don’t improve, do we need to staple those to all the proposal notices that follow? Holy, moly, what a lack of appreciation for how managers run the government.

Well, now we find a second lump of coal in our Christmas stocking, Miller v. DoJ, slip op 2015-3149 (Fed. Cir., December 2, 2016). In that case, DoJ had to defend itself against the appellant’s claim that the agency had reprised against him because of his whistleblowing.

As everyone knows who has attended our festive and fantastic MSPB Law Week (next offered March 13-17 in DC, then June 12-16 in the always delightful and inspiring San Francisco), an agency defends itself from a claim of whistleblower reprisal by arguing that the three Carr factors support a no-reprisal conclusion:

  1. The agency’s evidence to support the action claimed to be in reprisal for whistleblowing is strong,
  2. The motive for the agency management officials to reprise is weak, and
  3. The agency treated other employees who are not whistleblowers just as harshly as it did the whistleblower. Carr v. SSA, 185 F.3d 1318 (Fed. Cir. 1999).

In Miller, the alleged reprisal personnel action was a series of reassignments related to an OIG investigation. Regarding Factor 3 (similarly situated non-whistleblowers), the agency presented proof that there were no other employees similarly situated to the appellant at his facility who were not whistleblowers who were not reassigned; e.g. who were treated less harshly. The Board accepted this evidence and concluded that Carr Factor 3 carried no weight one way or the other. The fact that there were no non-whistleblowers under the control of the action official at the agency could not be an indicator of whether the action official considered the appellant’s whistleblowing in his reassignment decision-making. Makes sense to me.

Of course, the fact that it makes sense to me is just more proof I have no future as a federal judge. The court majority in Miller concluded that the agency’s evidence was deficient because the agency did not prove that non-whistleblowers elsewhere in the agency who were the subject of an OIG investigation also were reassigned. That’s right, the court reasoned that it is the “agency” that is required to prove similar treatment between whistleblowers and non-whistleblowers, even though it is a single, relatively low level manager who made the reassignment decision. Proof of no similarly-situated employees in the organization over which the action official has control is not enough.

With all due respect, this makes no sense. The agency here is the US Department of Justice, an organization of over 100,000 employees performing highly divergent functions. Here, a correctional officer is the appellant. The court is saying that the agency should have submitted proof of how it handles, perhaps, the reassignment of one of its tax lawyers who is the subject of an OIG investigation. Or, an administrative assistant over at the US Marshals Service, or maybe an environmental paralegal in the Environmental and Natural Resources Division. Why does it matter if some other supervisor did or did not reassign an employee associated to an OIG investigation? The action official in Miller is the warden of the local facility. That is who we should be assessing for whether he had an anti-whistleblower animus. A federal agency is not some monolithic Borg-like entity, controlled in thought by a single consciousness at the top who knows all and makes all the decisions. The warden in this case reassigned the appellant. Proof that a dozen other managers spread out among DEA, EOUSA, ATF and the War Division of DoJ reassigned OIG-targets who were NOT whistleblowers in no conceivable way goes to evidence as to what was in the brain of the local warden who did the whistleblower reassignment.

The Federal Circuit invented the Carr analysis. It now claims to be bound by it to consider agency-wide actions as low level as a reassignment when evaluating claims of whistleblower reprisal. It seems to expect that everyone in a federal agency knows everything that is happening within it, even things as minor as a reassignment. This approach is nonsensical and reflective of a lack of common sense when it comes to understanding how a federal agency is run. The law does not work without an appreciation for real-life application. [email protected]

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