NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

TIFFANY M. POTTER,

Petitioner

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent

______________________

2021-1460

______________________

Petition for review of the Merit Systems Protection 

Board in No. DE-1221-18-0165-M-1.

______________________

Decided: October 25, 2021

______________________

A. MARQUES PITRE, Pitre & Associates, LLC, Washington, DC, argued for petitioner.

 BRYAN MICHAEL BYRD, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by 

BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., ALLISON KIDDMILLER.

______________________

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2 POTTER v. DVA

Before MOORE, Chief Judge, BRYSON and PROST, Circuit 

Judges.

PROST, Circuit Judge.

This case returns to us following our previous remand 

to the Merit Systems Protection Board (“Board”). See Potter v. Dep’t of Veterans Affs. (Potter I), 949 F.3d 1376 

(Fed. Cir. 2020). For the reasons below, we vacate the 

Board’s decision in part and remand for further proceedings consistent with this opinion.

I

In Potter I, Tiffany Potter petitioned this court for review of the Board’s December 13, 2018 decision1 denying 

corrective action in her claim filed under the Whistleblower 

Protection Act. The Board determined that Ms. Potter 

failed to show a prima facie case that her July 10, 2014 

email was a contributing factor to her nonselection by the 

Department of Veterans Affairs (“agency”) for Chief Nurse 

IV in November 2015. See Potter I, 949 F.3d at 1379. We 

vacated that portion of the 2018 decision because it relied 

on a finding that the parties agreed was erroneous—i.e., 

that Dr. Deering (who canceled the Chief Nurse IV vacancy

in November 2015) did not know of Ms. Potter’s July 10, 

2014 email. Id. at 1379–81. We remanded with instructions to the Board to “consider whether, in view of Dr. Deering’s knowledge of Ms. Potter’s July 10, 2014 email, 

Ms. Potter presented evidence sufficient to satisfy the 

knowledge-timing test [of 5 U.S.C. § 1221(e)(1)], or if 

Ms. Potter otherwise presented evidence sufficient to 

demonstrate a prima facie case of whistleblower reprisal,” 

and if so, to “consider whether the [agency] [could] meet its 

burden of showing that it would have taken the same 

1 The December 13, 2018 decision was the administrative judge’s (“AJ”) initial decision, but it became the 

Board’s final decision. Potter I, 949 F.3d at 1379.

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POTTER v. DVA 3

November 2015 personnel action regardless of Ms. Potter’s 

protected disclosure.” Id. at 1380.

On remand, the AJ found that a preponderance of the 

evidence established that the July 10, 2014 email was a 

protected disclosure and that it was a contributing factor 

to Ms. Potter’s November 2015 nonselection. J.A. 4–8. The 

AJ then considered whether the agency demonstrated by 

clear and convincing evidence that it would have taken the 

same November 2015 personnel action in the absence of the 

July 10, 2014 protected disclosure. The AJ’s consideration 

in this regard was guided by the factors articulated in Carr 

v. Social Security Administration, 185 F.3d 1318, 1323

(Fed. Cir. 1999)—namely, (1) the strength of the agency’s 

evidence in support of its personnel action; (2) the existence 

and strength of any motive to retaliate on the part of the 

agency officials who were involved in the decision; and 

(3) any evidence that the agency takes similar actions 

against employees who are not whistleblowers but who are 

otherwise similarly situated. J.A. 8–16 (assessing these 

three Carr factors). The AJ concluded that the first Carr 

factor weighed “heavily” in the agency’s favor, that the second Carr factor weighed “modestly” in Ms. Potter’s favor, 

and that the third Carr factor was neutral. J.A. 12–16. As 

a result of its Carr analysis, the Board found that the 

agency demonstrated by clear and convincing evidence that 

it would have taken the same November 2015 personnel

action in the absence of the July 10, 2014 protected disclosure. J.A. 16. It therefore denied corrective action.

The AJ’s initial decision became the Board’s final decision. Ms. Potter timely petitioned this court for review of 

that decision. We have jurisdiction under 28 U.S.C. 

§ 1295(a)(9).

II

When addressing whether the government has shown

that it would have taken the same personnel action absent 

a protected disclosure, “[i]f considerable countervailing 

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4 POTTER v. DVA

evidence is manifestly ignored or disregarded in finding 

[the] matter clearly and convincingly proven, the decision 

must be vacated and remanded for further consideration 

where all the pertinent evidence is weighed.” Whitmore v. 

Dep’t of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012). Ms. 

Potter argues that in conducting its Carr analysis, the 

Board’s decision failed to consider certain evidence that 

may have detracted from its overall conclusion. We agree.

Ms. Potter observes that Dr. Deering had to testify before Congress about the patient-care crisis at the Phoenix 

VA Health Care System, whereupon he was asked why he

hadn’t been fired. Pet’r’s Br. 27 (citing J.A. 587–88). She 

notes that he had received death threats. And she cites his 

testimony that he was “feeling frustrated because people 

were going to the [Inspector General],” and that he “just 

wished they would come to [him] and say here’s what it is 

so we could tackle it together.” Pet’r’s Br. 27 (quoting J.A. 

595). According to Ms. Potter, this and other evidence not 

addressed in the Board’s decision detract from the reasons 

the agency gave for its November 2015 nonselection and 

indicate the presence of a retaliatory motive. Pet’r’s 

Br. 13–16, 25–27.

The agency disputes the import of the evidence that 

Ms. Potter cites. See, e.g., Resp’t’s Br. 38–48. But the extent to which such evidence affects a Carr analysis involves 

factual questions for the Board—not this court in the first 

instance. And, as to evidence that the Board’s decision 

failed to evaluate (including that set forth above), we cannot be assured that it was given the consideration and 

weight appropriate in a Carr analysis. See Whitmore, 

680 F.3d at 1376 (“While we acknowledge that the [Board] 

may well have considered the countervailing evidence and 

rejected or discounted it for various reasons, with no basis 

in [its] opinion to understand [its] logic, we cannot say that 

[its] analysis is reasonable or complies with the law for how 

proof by clear and convincing evidence is to be evaluated.”). 

Remand is therefore appropriate. See id. at 1368. On 

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POTTER v. DVA 5

remand, the Board is not limited to considering evidence 

bearing on Dr. Deering’s motives; rather, it should also consider any record evidence suggesting a retaliatory motive 

on the part of other agency officials and the extent to which 

such officials influenced Dr. Deering’s decision. See id.

at 1371 (“When a whistleblower makes . . . highly critical 

accusations of an agency’s conduct, an agency official’s 

merely being outside that whistleblower’s chain of command, not directly involved in alleged retaliatory actions, . . . is insufficient to remove the possibility of a 

retaliatory motive or retaliatory influence on the whistleblower’s treatment.”).

Further, while we recognize that the Board discussed

at least some of the abovementioned evidence in its 2018 

decision, that discussion was in a different context. There, 

the Board was evaluating whether Ms. Potter established 

a prima facie case of whistleblower reprisal. See, e.g., 

J.A. 917–22. But here, with the Board now having found 

such a prima facie case established, the question is

whether the agency demonstrated by clear and convincing 

evidence that it would have taken the same November 

2015 personnel action regardless of Ms. Potter’s July 10, 

2014 protected disclosure. See Potter I, 949 F.3d 

at 1380–81 (rejecting the agency’s argument that the 

Board’s 2018 factfinding regarding whether Ms. Potter established a prima facie case was sufficient to resolve this 

“separate question”).

III

Because the Board’s decision failed to consider certain 

evidence that may have detracted from its overall conclusion under a Carr analysis, we (1) vacate the portion of its 

decision concerning whether the agency carried its burden 

to demonstrate by clear and convincing evidence that it 

would have taken the same November 2015 personnel action regardless of Ms. Potter’s July 10, 2014 protected disclosure and (2) remand for further consideration of this 

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6 POTTER v. DVA

issue where all the pertinent evidence is weighed. See 

Whitmore, 680 F.3d at 1368. The Board’s decision on remand should consider whether, and the extent to which,

such evidence bears on any aspect of its Carr analysis.

VACATED-IN-PART AND REMANDED

COSTS

Costs to Petitioner.

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