United States Court of Appeals 

for the Federal Circuit ______________________ 

TROY W. MILLER,

Petitioner

v.

DEPARTMENT OF JUSTICE,

Respondent

______________________ 

2015-3149

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DA-1221-11-0401-W-3.

______________________ 

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. 

______________________ 
2 MILLER v. DOJ

Before REYNA, HUGHES, and STOLL, Circuit Judges.

Opinion for the court filed by Circuit Judge STOLL. 

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. 
MILLER v. DOJ 3

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 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 midto 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 
4 MILLER v. DOJ

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.
MILLER v. DOJ 5

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 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

 

1 Warden Upton testified that the prison helmet 

factory closed somewhere between August and September 

2011, nearly two years after Mr. Miller was initially 

reassigned out of the helmet factory. Mr. Miller received 

notification that he was being permanently reassigned 

from the Superintendent of Industries position to the 

position of Camp Administrator because of the factory 

closing.

2 Mr. Miller testified that the night shift was not 

desirable, and that he had not previously worked in the 

special housing unit.
6 MILLER v. DOJ

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 
MILLER v. DOJ 7

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 testified 

directed him to reassign Mr. Miller. 

Mr. Miller petitioned the full Board for review of the 

A.J.’s decision. The Board affirmed the A.J.’s initial 

decision, and it became the Board’s final decision. 

Mr. Miller appeals to us, and we have jurisdiction under 5 

U.S.C. § 7703(a)(1), (b)(1). 

DISCUSSION

I.

IRA appeals brought under the WPA operate in a 

burden-shifting framework. The burden lies with the 

employee to show “by a preponderance of the evidence 

that he or she made a protected disclosure under 

§ 2302(b)(8) that was a contributing factor to the employee’s [personnel action].” Whitmore v. Dep’t of Labor, 680 

F.3d 1353, 1367 (Fed. Cir. 2012) (citing 5 U.S.C. 

§ 1221(e)). “If the employee establishes this prima facie

case of reprisal for whistleblowing, the burden of persuasion shifts to the agency to show by clear and convincing 

evidence that it would have taken ‘the same personnel 

action in the absence of such disclosure,’” id. (quoting 

§ 1221(e)), which we sometimes refer to as a showing of 

“independent causation,” see, e.g., Kewley v. Department of 

Health & Human Services, 153 F.3d 1357, 1364 (Fed. Cir. 

1998). 

In evaluating whether the Government has successfully rebutted an employee’s prima facie case by demonstrating independent causation, this court has approved 

of the use of three, albeit nonexclusive, factors described 
8 MILLER v. DOJ

in Carr v. Social Security Administration, 185 F.3d 1318, 

1323 (Fed. Cir. 1999): 

[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.

But, “[t]o be clear, Carr does not impose an affirmative 

burden on the agency to produce evidence with respect to 

each and every one of the three Carr factors to weigh 

them each individually in the agency’s favor.” Whitmore, 

680 F.3d at 1374. Rather, “[t]he factors are merely appropriate and pertinent considerations for determining 

whether the agency carries its burden of proving by clear 

and convincing evidence that the same action would have 

been taken absent the whistleblowing.” Id.

By statute, we set aside the judgment of the Board if 

the decision is “(1) arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law; (2) 

obtained without procedures required by law, rule, or 

regulation having been followed; or (3) unsupported by 

substantial evidence.” 5 U.S.C. § 7703(c); see also 

Whitmore, 680 F.3d at 1366.

II. 

The Government does not dispute the Board’s threshold determination that Mr. Miller made a prima facie 

showing that his disclosures were WPA-protected and 

that they contributed to his reassignment. Thus, the 

burden shifted to the Government to show independent 

causation. The issue before us is whether substantial 

evidence supports the Board’s determination that the 
MILLER v. DOJ 9

Government showed independent causation by clear and 

convincing evidence. We conclude that it does not.

A. Burden of Proof and Standard of Review

Independent causation is established upon clear and 

convincing evidence. “‘Clear and convincing’ evidence has 

been described as evidence which produces in the mind of 

the trier of fact an abiding conviction that the truth of a 

factual contention is ‘highly probable.’” Price v. Symsek, 

988 F.2d 1187, 1191 (Fed. Cir. 1993) (quoting Buildex, 

Inc. v. Kason Indus., Inc., 849 F.2d 1461, 1463 (Fed. Cir. 

1988)); see also Colorado v. New Mexico, 467 U.S. 310, 316

(1983). The clear and convincing burden of proof “imposes 

a heavier burden upon a litigant than that imposed by 

requiring proof by preponderant evidence but a somewhat 

lighter burden than that imposed by requiring proof 

beyond a reasonable doubt.” Id. (citing Buildex, 849 F.2d 

at 1463). 

We have explained before that “there is no doubt that 

Congress considered it very important that federal agencies be required to clearly and convincingly rebut a prima 

facie case of whistleblower retaliation,” while quoting

legislative history that describes the significance of the 

Government’s burden: 

“Clear and convincing evidence” is a high burden 

of proof for the Government to bear. It is intended 

as such for two reasons. First, this burden of 

proof comes into play only if the employee has established by a preponderance of the evidence that 

the whistleblowing was a contributing factor in 

the action—in other words, that the agency action 

was “tainted.” Second, this heightened burden of 

proof required of the agency also recognizes that 

when it comes to proving the basis for an agency’s 

decision, the agency controls most of the cards—

the drafting of the documents supporting the decision, the testimony of witnesses who participated 
10 MILLER v. DOJ

in the decision, and the records that could document whether similar personnel actions have been 

taken in other cases. In these circumstances, it is 

entirely appropriate that the agency bear a heavy 

burden to justify its actions.

Whitmore, 680 F.3d at 1367 (quoting 135 Cong. Rec. 

H747–48 (daily ed. Mar. 21, 1989) (explanatory statement 

on Senate Amendment to S. 20)).

We review the Board’s finding of independent causation for substantial evidence. Kewley, 153 F.3d at 1364. 

“Substantial evidence . . . means such relevant evidence 

as a reasonable mind might accept as adequate to support 

a conclusion.” Consol. Edison Co. of N.Y. v. NLRB, 305 

U.S. 197, 229 (1938). “The substantiality of evidence 

must take into account whatever in the record fairly 

detracts from its weight.” Jacobs v. Dep’t of Justice, 35 

F.3d 1543, 1546 (Fed. Cir. 1994) (quoting Universal 

Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). “Any 

determination by an AJ that is based on findings made in 

the abstract and independent of the evidence which fairly 

detracts from his or her conclusions is unreasonable and, 

as such, is not supported by substantial evidence.” 

Whitmore, 680 F.3d at 1376.

This court’s prior opinions recognize the interrelatedness of the burden of proof a party must satisfy to win its 

case—here, clear and convincing evidence—and our 

standard of appellate review—substantial evidence in this 

instance. The burden of proof a party faces necessarily 

impacts our review on appeal: 

Substantial evidence is not a fixed quantum of evidence: What is or is not substantial may only be 

determined with respect to the burden of proof 

that the litigant bore in the trial court. “For example, in reviewing whether the evidence supports a finding of fact . . . the decision might be 

affirmed if the standard of proof below were 
MILLER v. DOJ 11

‘weight of evidence’ and might be reversed on the 

same record if the standard of proof were ‘clear 

and convincing’ evidence.” 

Eli Lilly & Co. v. Aradigm Corp., 376 F.3d 1352, 1363 

(Fed. Cir. 2004) (omission in original) (quoting SSIH 

Equip. S.A. v. U.S. Int’l Trade Comm’n, 718 F.2d 365, 383 

(Fed. Cir. 1983) (Nies, J., additional comments)); see also

Jackson v. Veterans Admin., 768 F.2d 1325, 1330 & n.5

(Fed. Cir. 1985). Indeed, our prior WPA decisions consistently describe the clear and convincing evidentiary burden as embedded within our substantial evidence 

appellate review. See, e.g., Greenspan v. Dep’t of Veterans 

Affairs, 464 F.3d 1297, 1306 (Fed. Cir. 2006) (“We have 

not been shown substantial evidence in support of the 

agency’s burden to establish by clear and convincing 

evidence that it would have taken these disciplinary 

actions absent the protected disclosures.” (emphases 

added)).3

 

3 See also Briley v. Nat’l Archives & Records Admin., 236 F.3d 1373, 1381 (Fed. Cir. 2001); Agoranos v. 

Dep’t of Justice, 602 F. App’x 795, 805 (Fed. Cir. 2015); 

Losada v. Dep’t of Def., 601 F. App’x 940, 943 (Fed. Cir. 

2015); Cassidy v. Dep’t of Justice, 581 F. App’x 846, 847 

(Fed. Cir. 2014); McCarthy v. Int’l Boundary & Water 

Comm’n, 497 F. App’x 4, 14 (Fed. Cir. 2012); Porzillo v. 

Dep’t of Health & Human Servs., 369 F. App’x 123, 127 

(Fed. Cir. 2010); Wadhwa v. Dep’t of Veterans Affairs, 353 

F. App’x 435, 438 (Fed. Cir. 2009); Pedeleose v. Dep’t of 

Def., 343 F. App’x 605, 609–10 (Fed. Cir. 2009); King v. 

Dep’t of Veterans Affairs, 276 F. App’x 996, 998 (Fed. Cir. 

2008); Dennis v. Dep’t of Veterans Affairs, 191 F. App’x 

961, 964 (Fed. Cir. 2006); Tomei v. Dep’t of Educ., 113 

F. App’x 920, 923 (Fed. Cir. 2004); Kraushaar v. Dep’t of 

Agric., 60 F. App’x 295, 298 (Fed. Cir. 2003); Meyers v. 
12 MILLER v. DOJ

B. Carr Factor Analysis

With this background in mind, we review the Board’s 

analysis of the Carr factors.

The first Carr factor is “the strength of the agency’s 

evidence in support of its personnel action.” Carr, 185 

F.3d at 1323. We do not focus our review of this Carr 

factor on whether the agency has put forward some evidence purporting to show independent causation, but 

instead we focus on whether such evidence is strong. See 

id. at 1323–24. The Board in this case relied nearly 

exclusively on Warden Upton’s testimony to conclude that 

this factor weighed in the Government’s favor. A considerable amount of the relied-on testimony consisted of 

Warden Upton’s recollection of things OIG told him. We 

hold that no reasonable factfinder could find Warden Upton’s conclusory testimony about how OIG directed

him to be strong evidence of independent causation.4 

Thus, this Carr factor could not favor the Government as 

the Board concluded. 

 

Dep’t of Veterans Affairs, 33 F. App’x 523, 527 (Fed. Cir. 

2002); Maston v. Dep’t of Justice, 10 F. App’x 937, 942 

(Fed. Cir. 2001); Beadling v. Dep’t of Justice, 4 F. App’x 

798, 801 (Fed. Cir. 2001); Gray v. Dep’t of Interior, 250 

F.3d 763 (Fed. Cir. 2000) (non-precedential); Bristow v. 

Dep’t of Army, 232 F.3d 908 (Fed. Cir. 2000) (nonprecedential).

4 The parties disagree as to whether such testimony 

constitutes hearsay or, rather, whether it falls within a 

hearsay exception. We find that resolving this dispute 

bears little on the ultimate issue. Hearsay may be admitted as preponderant evidence in Board proceedings “if, to 

a reasonable mind, the circumstances are such as to lend 

it credence.” Kewley, 153 F.3d at 1364. 
MILLER v. DOJ 13

The Government and the dissent rely on three pieces 

of allegedly substantial evidence of a strong showing of 

independent causation: (1) Warden Upton’s testimony 

that he took action because OIG told him Mr. Miller 

might interfere with the investigation; (2) Mr. Miller’s 

testimony that Warden Upton told him that OIG told the 

Warden to reassign Mr. Miller; and (3) Warden Upton’s 

testimony that he continued to reassign Mr. Miller because OIG told him that Mr. Miller was interfering with 

the investigation. Dissent 3–4. But Warden Upton’s 

conclusory testimony about OIG’s statements is not made 

more sufficient or clear and convincing simply by being 

repeated several times. Indeed, this evidence all collapses 

into essentially supporting the same basic conclusion—

OIG told Warden Upton to reassign Mr. Miller because he 

might interfere with the investigation. The Government’s 

evidence is weak, particularly when considered in light of 

the record evidence endorsing Mr. Miller’s character.

The Government introduced no evidence to explain 

how Mr. Miller, whose second protected disclosure related 

to the OIG investigation, could either compromise or be a 

target of an investigation into the very type of activities 

that he reported. To the contrary, the only evidence 

regarding Mr. Miller’s character was his “outstanding” 

performance review and Warden Upton’s testimony that 

Mr. Miller was “a fantastic employee” who was “confident, 

organized, . . . [and] very on top of things.” J.A. 90–92. 

Warden Upton further testified that Mr. Miller “[w]as

willing to do anything that you asked him to do” and that 

he “sought out additional duties.” Warden Upton testified 

that he had “absolutely no concerns” about Mr. Miller, “a 

very good employee” who served on his executive staff, 

and Warden Upton testified that he had no reason to 

place him under investigation. Id. To reach the conclusion the Government suggests—that OIG directed the 

reassignment of Mr. Miller to various menial jobs and 

ultimately the couch for four and a half years for fear that 
14 MILLER v. DOJ

he would interfere with an investigation allegedly targeting him—a reasonable fact finder would have to conclude 

that Mr. Miller made his protected disclosures of mismanagement as part of a cover-up. The record is devoid of 

any evidence supporting such a theory. To the contrary, 

the record demonstrates that Mr. Miller was a twentyone-year employee of the Federal Bureau of Prisons and 

former U.S. Marine who was concerned about the quality 

of the advanced combat helmets manufactured by the 

prison factory. The record further demonstrates that 

Mr. Miller was a valued executive, whose expertise and 

attention to detail made his product line one of the most 

successful in the Agency.

Warden Upton’s testimony was the only evidence 

supporting the seemingly unusual basis for Mr. Miller’s 

four-and-a-half year reassignment following his protected 

disclosures. Yet the Warden could not testify as to significant details, such as who at OIG he communicated with. 

The Government failed to present any other witness 

testimony to support its argument that Mr. Miller was 

removed out of concern that he might somehow interfere 

with the OIG investigation. Mr. Beus—who was 

Mr. Miller’s supervisor at the Government-owned corporation that operated the factory, UNICOR—was the 

Government’s only other witness and he did not corroborate Warden Upton’s testimony. While Mr. Beus testified 

about Mr. Miller’s protected disclosures and the OIG 

investigation generally, his only testimony regarding 

Mr. Miller’s reassignment was that he had no input into 

the reassignment decision. J.A. 501–02 (“Q: Okay. So 

did you have any input in Mr. Miller being removed from 

his position as [Superintendent of Industries] on that day? 

A: No.”). He did not testify as to who made the reassignment decision or for what reason. 

The Government also failed to present any documentary evidence supporting its position. Mr. Miller was 

repeatedly reassigned over the course of a four-and-a-half 
MILLER v. DOJ 15

year period, and for each step, the Government did not 

present a single email, memorandum, or personnel action 

form documenting or providing the bases for the agency’s 

action. Common sense tells us that these repeated reassignments, occurring over a significant span of time, are 

the types of personnel actions for which papers would 

normally attach. 

To be clear, we do not hold today that testimony must 

be corroborated to support a showing of independent 

causation, although that is one of potentially many ways 

that the Government could have made its weak evidentiary showing stronger in this case. Likewise, we do not 

accept Mr. Miller’s invitation to view Warden Upton’s 

testimony as not credible. See Chambers v. Dep’t of 

Interior, 515 F.3d 1362, 1370 (Fed. Cir. 2008) (holding the 

Board’s “credibility determinations are ‘virtually unreviewable’ at this level” (quoting Hambsch v. Dep’t of 

Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986))). But even 

taking the Warden’s testimony at face value, we conclude 

that his bare testimony about what OIG directed him to 

do affords only minimal support for Mr. Miller’s removal

when considered in light of the remainder of the record in 

this case, including the Board’s unchallenged findings 

that Mr. Miller made protected disclosures, that those 

disclosures contributed to his removal, and that 

Mr. Miller was by all accounts an outstanding employee. 

Without introducing any other testimony or documentary 

evidence—for example, from OIG, the group that the 

Warden testified, see J.A. 118, and the Government 

concedes, see Oral Argument at 37:32–55, drove the 

December 2009 reassignment decision—there is a significant weakness in the quantum of the Government’s 

evidence going towards the first Carr factor. By pointing 

to the lack of corroboration, the dearth of documents, 

emails, or records, and even the lack of detail in Warden Upton’s recollection, we are not assessing Warden Upton’s credibility. Rather, we are doing precisely 
16 MILLER v. DOJ

what our review of this Carr factor demands: assessing 

whether a factfinder could reasonably conclude that the 

Government presented strong evidence of independent 

causation. We conclude that one could not and that this

factor, therefore, could not cut in the Government’s favor

as the Board found. 

The second Carr factor is “the existence and strength 

of any motive to retaliate on the part of the agency officials who were involved in the decision.” Carr, 185 F.3d 

at 1323. The A.J. found that Warden Upton had “little or 

no motive to retaliate against” Mr. Miller. J.A. 136. In 

reaching this conclusion, the A.J. relied on the fact that 

Warden Upton did not exercise direct oversight over the 

factory and the Warden’s testimony that it did not matter 

much to him whether the factory turned a profit.

While the Board’s analysis of this factor was reasonable, we note that the Warden testified that he did, in fact, 

have an interest in the ongoing operation of the prison 

factory to keep inmates “out of trouble” and occupied, 

instead of sitting around for months at a time. The 

Warden also testified that a possible shutdown of the 

factory would “create concern,” because “you have to 

figure out how that fits into your daily operational plan.” 

J.A. 116–17. And regarding the A.J.’s reliance on the 

Warden’s lack of direct factory oversight, we have previously admonished the Board for taking a dismissive 

approach to the retaliatory motive Carr factor merely 

because a supervisor isn’t directly involved in the work at 

issue in an employee’s protected disclosure. In Whitmore, 

the A.J. found no evidence that the removing officials had 

a retaliatory motive against the employee because they 

were outside of his chain of command and were not implicated by his whistleblowing. 680 F.3d at 1370–71. We 

found that this analysis took “an unduly dismissive and 

restrictive view of Carr factor two,” id. at 1370, and

remanded with instructions for broader consideration of 

this factor, id. at 1372. We explained that “[t]hose re-
MILLER v. DOJ 17

sponsible for the agency’s performance overall may well 

be motivated to retaliate even if they are not directly 

implicated by the disclosures, and even if they do not 

know the whistleblower personally, as the criticism 

reflects on them in their capacities as managers and 

employees.” Id. at 1370 (citations omitted). 

We also find it concerning that the A.J. made a finding regarding Warden Upton’s retaliatory motive, but 

none regarding OIG’s motive. The precise language from 

Carr makes clear that this factor should be evaluated 

more generally, as the factor is directed towards “agency 

officials who were involved in the decision,” not just the 

employee’s direct supervisor. Carr, 185 F.3d at 1323; see 

also Whitmore, 680 F.3d at 1371 (“[A]n agency official’s 

merely being outside that whistleblower’s chain of command, not directly involved in alleged retaliatory actions, 

and not personally named in the whistleblower’s disclosure is insufficient to remove the possibility of a retaliatory motive or retaliatory influence on the whistleblower’s 

treatment.”). Considering that, in this case, 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.

Given these considerations, the evidence for this factor does not unfailingly support the Government. Nonetheless, given the Warden’s testimony that he had no 

reason to be concerned about the factory’s profits, the 

Board’s conclusion that this factor ultimately tips in the 

Government’s favor is reasonable. 

The third and final Carr factor is “any evidence that 

the agency takes similar actions against employees who 

are not whistleblowers but who are otherwise similarly 

situated.” Carr, 185 F.3d at 1323. The A.J. found that 

there was no basis for evaluating this factor because 

Warden Upton testified that no other similar investiga-
18 MILLER v. DOJ

tions involving members of his executive staff occurred 

during his tenure as Warden. 

The Government took an exceedingly narrow approach in addressing this factor. The Warden’s testimony 

shows there to be a lack of similarly situated nonwhistleblowers only at the Beaumont prison facility 

working on the Warden’s four-member executive staff 

specifically and only during his tenure there. The Government introduced no evidence as to what actions it 

takes against other DOJ employees during OIG investigations despite this factor being directed to the “agency” 

rather than to a particular supervisor at a particular 

Federal Bureau of Prisons facility. It may be the case 

that the DOJ transfers employees pending investigation 

by OIG with some regularity, but the Government has put 

forward no evidence of that here. The Government provided no evidence that the treatment of Mr. Miller is 

comparable to similarly situated employees who are not 

whistleblowers, and the court may not simply guess what 

might happen absent whistleblowing. The burden lies 

with the Government. 

The Government bears the risk associated with having no evidence on record for this factor. For while we 

have indicated that “the absence of any evidence relating 

to Carr factor three can effectively remove that factor 

from the analysis,” we further explained that the Government’s failure to produce evidence on this factor “may 

be at the agency’s peril” considering the Government’s 

advantage in accessing this type of evidence. Whitmore, 

680 F.3d at 1374 (internal citations omitted). Indeed, “the 

absence of any evidence concerning Carr factor three may 

well cause the agency to fail to prove its case overall.” Id. 

Thus, this factor adds little to the overall analysis in this 

case, but if anything, tends to cut slightly against the 

Government. 
MILLER v. DOJ 19

Considering the record as a whole, we are struck by 

the want of evidence presented by the Government to 

show independent causation. Although the Government 

adduced some evidence for Carr factor two, the strength 

of its independent causation evidence (Carr factor one) 

was weak, and it adduced no evidence whatsoever for 

Carr factor three. While we again recognize that the 

Government need not introduce evidence for each Carr 

factor, or prove that each weighs in its favor to meet its 

burden, id., we cannot say that substantial evidence 

supports a finding that the Government clearly and 

convincingly proved independent causation in this case. 

The Government must do more than it did here to satisfy 

the “high burden of proof” that Congress demanded in 

cases where the employee has already shown that whistleblowing was a contributing factor and the burden shifts 

to the Government to show independent causation. Id. at 

1367 (quoting 135 Cong. Rec. H747–48 (daily ed. Mar. 21, 

1989) (explanatory statement on Senate Amendment to 

S. 20)). Thus, we conclude that there is not substantial 

evidence to support the Board’s determination that the 

Government proved by clear and convincing evidence that 

it would have reassigned Mr. Miller even in the absence of 

his protected disclosures.

Contrary to the dissent’s suggestion, we do not hold 

that Warden Upton is not credible or that his testimony 

requires corroboration as a matter of law. Nor have we 

reweighed the evidence. The dissent accuses our opinion 

of having a breadth that it simply does not have. We 

merely hold that, in this case, there is a failure of proof 

because the Government did not meet its burden. Congress instituted a particular statutory framework for 

analyzing whistleblower cases, including a heightened 

burden of proof once the whistleblower has established by 

a preponderance of the evidence that whistleblowing was 

a contributing factor in a personnel action. “This heightened burden of proof required of the agency recognizes 
20 MILLER v. DOJ

that when it comes to proving the basis for an agency’s 

decision, the agency controls most of the cards—the 

drafting of the documents supporting the decision, the 

testimony of witnesses who participated in the decision, 

and the records that could document whether similar 

personnel actions have been taken in other cases.” Id. 

Here, there is a dearth of evidence establishing independent causation: no testimony other than Warden Upton’s 

conclusory testimony, no documents whatsoever supporting the agency’s action, and no records to document 

similar actions in other cases. 

The dissent also alleges that we fail to “cite to a single 

piece of affirmative evidence that Mr. Miller was reassigned for whistleblowing.” Dissent 10. But the dissent 

wholly ignores what the Board already found and the 

Government does not dispute on appeal: Mr. Miller 

“made protected disclosures under 5 U.S.C. § 2302(b)(8) 

that were a contributing factor in the decision to reassign 

him.” Miller v. Dep’t of Justice, No. DA-1221-11-0401-W3, 2015 WL 1548991 (M.S.P.B. Apr. 8, 2015). Thus, our 

review is strictly limited to whether the Government met 

its steep burden to show independent causation guided by 

the Carr factors, in which the dissent fails to ground its 

discussion. 

Finally, the dissent accuses our opinion of failing “to 

appreciate the impact of [this] decision on the agency” and 

Warden Upton5 because the agency likely will be required 

 

5 The dissent asserts that harm will come to Warden Upton as a result of our decision. We reiterate, 

however, that we do not question Warden Upton’s veracity. We simply conclude that, given the other evidence of 

record, the Government’s sole reliance on his conclusory 

and unsupported testimony was not enough to satisfy the 

Government’s burden. 
MILLER v. DOJ 21

to report this case to Congress. Dissent 10. But sympathy for the agency does not bear on the question before us. 

The statutory framework this court must follow requires 

us to consider whether a reasonable fact finder could find 

the Government met its “heavy burden to justify its 

actions” after the employee had already established that 

whistleblowing was a contributing factor in the action. 

Whitmore, 680 F.3d at 1367 (quoting 135 Cong. Rec. 

H747–48 (daily ed. Mar. 21, 1989) (explanatory statement 

on Senate Amendment to S. 20)). We conclude that, in 

this case, one could not. 

CONCLUSION

For the foregoing reasons, we reverse the Board’s decision and remand for further proceedings including 

determination of the remedy appropriate for the improper 

personnel action. 

REVERSED AND REMANDED

COSTS

Costs to Petitioner. 
United States Court of Appeals 

for the Federal Circuit ______________________ 

TROY W. MILLER,

Petitioner

v.

DEPARTMENT OF JUSTICE,

Respondent

______________________ 

2015-3149

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DA-1221-11-0401-W-3.

______________________ 

REYNA, Circuit Judge, concurring.

I concur with the majority opinion. I write separately 

to elaborate on why the Board erred in evaluating the 

second Carr factor: “the existence and strength of any 

motive to retaliate on the part of the agency officials who 

were involved in the decision.” Carr v. Soc. Sec. Admin., 

185 F.3d 1318, 1323 (Fed. Cir. 1999). Warden Upton 

testified that Mr. Miller was “a fantastic employee” whom 

he reassigned only because OIG directed him to do so. 

Thus, not only was OIG “involved in the decision,” but the 

record suggests that OIG—not Warden Upton—was the 

de facto decisionmaker here. 

A “Cat’s Paw” theory applies when an individual with 

knowledge of the protected disclosure influences another
2 MILLER v. DOJ

official to reassign the employee. Thus, the official making the reassignment is simply channeling the wishes of 

the de facto decisionmaker. We have not addressed the 

Cat’s Paw theory in a published whistleblower decision, 

but the Supreme Court addressed it in a different context, 

writing, “[I]f a supervisor performs an act motivated by 

antimilitary animus that is intended by the supervisor to 

cause an adverse employment action, and if that act is a 

proximate cause of the ultimate employment action, then 

the employer is liable” under the relevant statute. Staub 

v. Proctor Hosp., 562 U.S. 411, 424 (2011). Here, Warden 

Upton performed an act intended to cause an adverse 

employment action but insists that he was following 

OIG’s orders. Given Warden Upton’s positive reviews of 

Mr. Miller’s job performance, it seems unlikely that he

would have reassigned Mr. Miller absent OIG’s influence. 

Yet the Board never questioned whether OIG in fact

directed Mr. Miller’s reassignment or its motivation for 

doing so. See J.A. 126–27 (evaluating only Warden Upton’s retaliatory motive).1

In Whitmore v. Department of Labor, 680 F.3d 1353 

(Fed. Cir. 2012), we noted that once an employee makes a 

prima facie case, the Board is not limited to evaluating 

the retaliatory motives of agency officials directly in the 

whistleblower’s chain of command. Id. at 1371. Instead, 

the Board should consider the possible retaliatory motives 

 

1 The dissent implies that Mr. Miller has waived a 

Cat’s Paw theory argument. But the Board’s failure to 

evaluate OIG’s role in Mr. Miller’s reassignment lends 

further support that its decision was not supported by 

substantial evidence. See Jones v. Dep’t of Justice, 35 

F.3d 1542, 1546 (Fed. Cir. 1994) (“The substantiality of 

evidence must take into account whatever in the record 

fairly detracts from its weight.”).
MILLER v. DOJ 3

of any official who appears to have influenced the adverse 

employment action. Thus, at minimum, I would remand 

for the Board to determine OIG’s role and motivation in 

Mr. Miller’s reassignment in the first instance.

The dissent questions what OIG’s possible retaliatory 

motive could be in light of OIG’s role to protect whistleblowers. But answering that question is not Mr. Miller’s 

burden. The parties agreed that Mr. Miller made a prima 

facie case, thus shifting the burden to the Government to 

show independent causation by clear and convincing 

evidence. As the majority opinion notes, it failed to do so. 

The Government’s failure to explain OIG’s obvious role in 

Mr. Miller’s reassignment only highlights the lack of clear 

and convincing evidence of independent causation. 
United States Court of Appeals 

for the Federal Circuit ______________________ 

TROY W. MILLER,

Petitioner

v.

DEPARTMENT OF JUSTICE,

Respondent

______________________ 

2015-3149

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DA-1221-11-0401-W-3.

______________________ 

HUGHES, Circuit Judge, dissenting.

In a whistleblower case where an employee makes a 

prima facie case of whistleblower reprisal, the burden 

shifts to the agency to prove by clear and convincing 

evidence that it took the adverse action for a reason other 

than whistleblower reprisal. Whether the agency had a 

non-retaliatory reason is a factual determination, which 

we review for substantial evidence. Here, the Board made 

that factual determination relying largely on the unrebutted, credible testimony of Warden Upton, the agency 

official responsible for taking the adverse action. As 

Warden Upton testified, and the Board found, Mr. Miller

was reassigned to other job duties at OIG’s request so as 

not to interfere with an official investigation. 
2 MILLER v. DOJ

The majority nowhere suggests that this reason, if 

true, would have been insufficient to satisfy the agency’s 

burden. Nor does the majority anywhere directly question Warden Upton’s credibility, or his testimony that 

Mr. Miller’s interference with the investigation was the 

actual reason for the reassignment. Thus, the majority’s 

reasoning would seem to lead to the following conclusions: 

first, the deciding official credibly testified that the reason 

he took the adverse action was at OIG’s request; second, 

the majority has no reason to question this testimony or 

overturn the Board’s implicit credibility determination 

that the official testified truthfully; and third, the reason 

given––Mr. Miller’s interference with the investigation––

would have met the clear and convincing evidence standard if true. These three conclusions, which can all be 

gleaned from the majority’s opinion, require us to affirm.

Instead the majority concludes, on some undefined 

notion of substantial evidence, that there should be 

“more” here. Specifically, the majority states that the 

lack of “any other testimony or documentary evidence—

for example, from OIG” presents a “significant weakness” 

in the Government’s case, Maj. Op. at 15, and that the 

“Government must do more than it did here to satisfy the 

‘high burden of proof’” that is required in whistleblower 

reprisal cases, id. at 19. But substantial evidence requires only “such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion,” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938), and 

the Board’s factual conclusions, each of which is supported by substantial evidence, would be sufficient for a 

reasonable person to conclude that Mr. Miller was reassigned for reasons independent of whistleblower reprisal. 

Thus, there are only three possible explanations for 

the majority’s conclusion, all of which conflict with this 

Court’s precedent.
MILLER v. DOJ 3

The first and most likely explanation is that the majority simply disregards our deferential standard of review. The majority reaches beyond our deference 

standard to re-weigh the evidence and conclude that 

“given the other evidence of record, the Government’s sole 

reliance on [Warden Upton’s] conclusory and unsupported 

testimony was not enough to satisfy the Government’s 

burden.” Maj. Op. at 20 n.5. The majority appears to 

base its heightened review standard on the argument that 

we must take the underlying burden of proof––clear and 

convincing evidence––into consideration in our review on 

appeal, id. at 8–10, and goes so far as to say that our 

“focus” is “on whether [the agency’s evidence purporting 

to show independent causation] is strong,” id. at 12. I do 

not dispute that we must take into account the Government’s burden to show independent causation by clear 

and convincing evidence. However, this does not transform our assessment into a de novo review, and our 

precedent does not dictate that this Court’s standard of 

review is to assess the strength of the agency’s evidence 

de novo. See Carr v. Soc. Sec. Admin., 185 F.3d 1318, 

1323–24 (Fed. Cir. 1999) (noting that the Board, not this 

Court, considers the strength of the agency’s evidence in 

support of its personnel action). Rather, established 

precedent dictates that we are only tasked with evaluating whether a reasonable fact finder could have arrived at 

the Board’s determination that Mr. Miller was reassigned 

for reasons independent of his protected disclosures. See 

In re Gartside, 203 F.3d 1305, 1312 (Fed. Cir. 2000) (the 

substantial evidence standard “asks whether a reasonable 

fact finder could have arrived at the agency’s decision”). 

Ample evidence exists to support the Board’s factual 

finding that the agency demonstrated, by clear and convincing evidence, that the reason for Mr. Miller’s reassignment was to prevent him from interfering with an 

OIG investigation. First, of course, is the consistent and 

credible testimony of Warden Upton, the deciding official 
4 MILLER v. DOJ

who took the action. See, e.g., J.A. 542–45 (Warden Upton

testifying that OIG asked him to reassign Mr. Miller

because of the investigation). Second is Mr. Miller’s own 

testimony about the reason for the reassignment. Id. at

273 (Mr. Miller testifying that Warden Upton told him to

leave the factory on December 15, 2009, due to the OIG 

investigation); id. at 283 (Mr. Miller testifying that Warden Upton told him he was being reassigned on December 

16, 2009, because Miller had purportedly sent an email to 

the staff urging them not to cooperate with the OIG 

investigation). And, third is the fact that Mr. Miller had 

to be reassigned to other positions within the Bureau of 

Prisons because he did, in fact, continue to attempt to 

interfere with the investigation. Id. at 546–50 (Warden 

Upton testifying that Mr. Miller was removed from subsequent positions because he had conversations with 

inmates and monitored calls to gain information about the 

investigation). Although a different fact-finder might not 

have believed Warden Upton or the agency’s account, we 

are not permitted to re-weigh or recharacterize the evidence as the majority does. See Maj. Op. at 13–14 (concluding that there is no evidence that Mr. Miller could 

either compromise or be a target of an investigation that 

his protected disclosure related to). 

Second, even as the majority denies that it is questioning Warden Upton’s credibility, it essentially determines that his testimony is insufficient and the reasons 

he gave for the reassignment are not the truth. That, of 

course, we cannot do. See Hambsch v. Dep’t of the Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986) (credibility determinations are “virtually unreviewable”). There is no

evidence to suggest that Warden Upton lied about his 

rationale for reassigning Mr. Miller. Warden Upton

consistently testified that he reassigned Mr. Miller due to 

the pending OIG investigation and at OIG’s request. The 

Board was never presented with contrary testimony. The 

majority faults Warden Upton’s testimony for his failure 
MILLER v. DOJ 5

to “testify as to significant details, such as who at OIG he 

communicated with.” Maj. Op. at 14. But the majority 

fails to consider that Warden Upton testified about 

Mr. Miller’s reassignment more than four years after the 

reassignment took place. And, in any event, the fact that 

Warden Upton could not remember those details goes to 

the credibility of his testimony, which is a question for the 

Board and not for us. The majority also neglects to take 

into account that Mr. Miller himself testified that Warden 

Upton explained to him on multiple occasions that he was 

being reassigned because of the OIG investigation. See, 

e.g., J.A. 273, 283. The majority has to find a lack of 

substantial evidence to support the Board’s factual finding, and cannot premise its decision on its own belief that 

something more happened here. See Kewley v. Dep’t of 

Health & Human Servs., 153 F.3d 1357, 1364 (Fed. Cir. 

1998) (affirming the finding of independent causation by 

looking only to the evidence “expressly relied upon by the 

AJ [Administrative Judge]”).1 

 

1 At times, the majority appears to suggest that, 

even if Warden Upton was telling the truth, the agency 

also was required to demonstrate that OIG had a clear 

and convincing non-retaliatory reason for requesting the 

reassignment. See Maj. Op. at 17. (“We also find it 

concerning that the A.J. made a finding regarding Warden Upton’s retaliatory motive, but none regarding OIG’s 

motive.”). But that type of “Cat’s Paw” theory, see, e.g., 

Howard v. Dep’t of Transp., 511 F. App’x 984, 987 (Fed. 

Cir. 2013) (rejecting petitioner’s theory that an individual 

with knowledge of a protected disclosure exerted influence 

on the managerial official who terminated the petitioner’s 

employment), was not presented to the Board or to this 

Court. 
6 MILLER v. DOJ

The third, and perhaps the most damaging explanation for the majority’s opinion, is that it has sub silentio

imposed a corroboration requirement for a deciding official’s testimony. Even though the majority denies that it 

is doing so or even that it is questioning Warden Upton’s 

credibility, I can think of no other explanation for its 

criticisms that Warden Upton’s testimony was the “only 

evidence supporting the seemingly unusual basis for 

Mr. Miller’s four-and-a-half-year reassignment,”2 and 

“[t]he Government failed to present any other witness 

testimony to support its argument that Mr. Miller was 

removed out of concern that he might somehow interfere 

with the OIG investigation.” Maj. Op. at 14. The majority also suggests that there would have been documentation of repeated reassignments. Id. at 14–15. The 

majority’s “common sense” speculation is unfounded and 

inconsistent with federal personnel law. Official personnel documents are generated for changes in grade, pay, 

official duty station and the like, not temporary reassignments. Contrary to the majority’s assertion, I would 

not expect any kind of official documentation to exist for 

Mr. Miller’s reassignments which did not involve a change 

in position, pay or official duty station. See United States 

Office of Personnel Mgmt., Guide to Processing Personnel 

Actions (2016), https://www.opm.gov/policy-dataoversight/data-analysis-documentation/personneldocumentation/#url=Processing-Personnel-Actions. 

 

2 And I fail to see what is “unusual” about a reassignment decision made to cooperate with an OIG investigation. Surely, the majority is not suggesting that 

agencies refuse to cooperate with the Inspector General. 

And if “unusual” refers to the length, I see nothing in the 

record to suggest that 4.5 years is an “unusual” length of 

time for an OIG investigation. 
MILLER v. DOJ 7

The majority’s use of a corroboration requirement is 

the only explanation that would suffice for it to hold that 

a deciding official’s credible testimony is insubstantial or 

false. There is no one with better firsthand knowledge to 

testify about the reasons for a personnel action than the 

person responsible for taking it. Warden Upton was 

indisputably Mr. Miller’s direct supervisor and had the 

authority to reassign him. While an agency official could 

certainly lie about his or her decision to reassign an 

employee, that is largely a credibility determination for 

the Board to make. And, the majority appears to concede 

that Warden Upton, the agency official in this case, 

provided credible testimony. See Maj. Op. at 15. 

The majority’s erroneous findings are further highlighted through its conclusion that Warden Upton’s “bare 

testimony about what OIG directed him to do affords only 

minimal support for Mr. Miller’s removal” in light of other 

evidence. Id. This other evidence includes the Board’s 

“unchallenged findings” that Mr. Miller made protected 

disclosures that contributed to his removal, and Mr. 

Miller’s record as an “outstanding employee.” Maj. Op. at 

15. As a preliminary matter, while the Board did find 

that Mr. Miller made a prima facie case that he made a 

protected disclosure that was a contributing factor in the 

reassignment, J.A. 132–35, the burden then shifted to the 

agency to demonstrate by clear and convincing evidence 

that it would have made the reassignment in the absence 

of the disclosures. J.A. 135. That is the sole issue on 

appeal here, and the Carr factors––which the majority 

concedes govern here––do not consider the employee’s 

success in making a prima facie case of whistleblower 

reprisal. Indeed, it is the employee’s success in doing so 

that mandates the consideration of the Carr factors in the 

separate inquiry into the agency’s reasons for the reassignment. Furthermore, the majority mischaracterizes 

both the Board’s finding and the Government’s position as 

conceding that Mr. Miller’s disclosures contributed to his
8 MILLER v. DOJ

reassignment. Maj. Op. at 20 (“But the dissent wholly 

ignores what the Board already found and the Government does not dispute on appeal: Mr. Miller ‘made protected disclosures under 5 U.S.C. § 2302(b)(8) that were a 

contributing factor in the decision to reassign him.’” 

(quoting Miller v. Dep’t of Justice, No. DA-1221-11-0401-

W-3, 2015 WL 1548991 (M.S.P.B. Apr. 8, 2015)). In fact, 

the opposite is the case. The Government asserted and 

the Board clearly found that Mr. Miller’s disclosures did 

not contribute to his reassignments, which is why his 

whistleblower claims were rejected. See J.A. 146 (“[T]he 

record demonstrates that the appellant’s initial and 

successive reassignments were precipitated by an external OIG investigation.”); Resp. Br. at 10–12. 

The majority also apparently believes that OIG is so 

closely tied to the agency that an OIG representative 

should have testified as to Mr. Miller’s removal, and that 

the Board should have assessed whether OIG had a 

possible retaliatory motive.3 That suggestion evidences a 

 

3 The concurrence goes further and suggests that 

the case should, in fact, be remanded for the agency to 

affirmatively demonstrate a lack of any retaliation by 

OIG. See Concurring Op. at 2–3. But, as noted above,

that theory of whistleblower retaliation was never presented to the Board or even suggested to this court—it 

was only suggested by members of the majority. An 

agency should not be required, under Carr factor two, to 

disprove theories of retaliation that were never presented 

to the Board and not part of the prima facie case. The 

burden does not shift to the agency until a prima facie 

case has been made which makes sense. A prima facie 

case is made by showing a protected disclosure, a prohibited personnel action, and knowledge of the disclosure 

within temporal proximity by the official taking the 
MILLER v. DOJ 9

misunderstanding of the role of the Inspectors General in 

our federal government. The OIGs are, by congressional 

design, objective units independent from the respective 

agencies. Their purpose is, among other things, to detect 

fraud and abuse. See Inspector General Act of 1978, Pub. 

L. 95–452, § 2, 92 Stat. 1101 (1978). And, in doing so, 

they often rely on reports from whistleblowers. See 5 

U.S.C. § 2302(b)(8)(B) (protecting whistleblower disclosures to the Inspectors General). To suggest that the OIG 

would retaliate against a whistleblower flies in the face of 

its congressionally mandated mission. But this discussion 

is beside the point because there is no evidence that OIG 

had a retaliatory motive. It is purely speculative and has 

no place in a substantial evidence review.4 

In any event, there is no dispute that Warden Upton

was Mr. Miller’s direct supervisor and had the sole authority to reassign him. Therefore, the majority errs in 

faulting the Government for failing to provide testimony 

from OIG. 

 

personnel action. See, e.g., Whitmore v. Dep’t of Labor, 

680 F.3d 1353, 1367 (Fed. Cir. 2012). Our precedent does 

not require an agency to go further and disprove other 

possible retaliatory actions when no prima facie case has 

been made. And if it does, it ought to be corrected. 4 It is, however, potentially dangerous dicta, to the 

extent it suggests, that OIG might have some affirmative 

duty to explain its reasoning for a reassignment during an 

investigation or provide evidence of why it is necessary for 

these reassignments to take place. The circumstances of 

their various investigations can and do involve extremely 

sensitive and/or potentially criminal actions. A requirement that OIG disclose anything to the agency it is investigating has the potential to damage an ongoing 

investigation. 
10 MILLER v. DOJ

Finally, the majority fails to appreciate the impact of 

its decision on the agency. The majority’s reversal of the 

Board’s decision likely means that Mr. Miller will succeed 

in his claim of whistleblower reprisal since the Court has 

now ruled that the agency failed to rebut his prima facie 

case. Under the Notification and Federal Employee 

Antidiscrimination and Retaliation Act of 2002 (the No 

FEAR Act), the agency likely will be required to report

this case to Congress. See Pub. L. 107-174, § 203, 116 

Stat. 569 (2002). The majority’s decision will require this 

report even though the majority cannot cite to a single 

piece of affirmative evidence that Mr. Miller was reassigned for whistleblowing. In addition, Warden Upton

will be associated with taking a personnel action that the 

majority now labels as whistleblower retaliation, even 

though the Board found his testimony credible and there 

is nothing in the record to indicate that he either lied or 

reassigned Mr. Miller for whistleblowing activity. Thus, 

the majority’s opinion not only does damage to the law, 

but also harms, without any evidence of wrongdoing, a 

government supervisor with over 20 years of federal 

service. 

At the end of the day, after denying that it is making 

a de novo credibility determination or imposing a corroboration requirement for the deciding official’s testimony, 

the majority’s basis for reversing the Board’s decision 

seems to be that something “more” was required. But our 

statutorily limited scope of review over Board decisions

conflicts with the majority’s requirement for “more.” See 

5 U.S.C. § 7703(c)(3) (as applicable here, we may only 

“hold unlawful and set aside any agency action, findings, 

or conclusions found to be . . . unsupported by substantial 

evidence”). I don’t dispute that additional evidence, such 

as more detailed testimony from Warden Upton about 

OIG’s request to reassign Mr. Miller—for example, the 

requesting investigator’s name, or an affidavit from OIG 

averring to the requested reassignment—would certainly 
MILLER v. DOJ 11

have bolstered the agency’s case. But these considerations are only relevant to either credibility or corroboration, the first of which we do not review, and the second of 

which the majority disclaims. 

“Substantial evidence is more than a scintilla, and 

must do more than create a suspicion of the existence of 

the fact to be established.” Nippon Steel Corp. v. United 

States, 458 F.3d 1345, 1351 (Fed. Cir. 2006). A reviewing 

court must consider the record as a whole, including that 

which “fairly detracts from its weight.” Id. Having pointed to no evidence that detracts from Warden Upton’s

testimony and, indeed, disclaiming any attack on his 

credibility, the majority nevertheless concludes that his 

testimony is insufficient for a reasonable mind to accept. 

Or put simply, the deciding official’s credible and uncontradicted testimony about the non-retaliatory reason he 

took the disputed action is insufficient to establish that 

the action was non-retaliatory. I have never heard of 

such an application of the substantial evidence standard 

that rejects uncontradicted, truthful testimony in favor of 

unfounded speculation about what might have happened 

or what more the agency should have done. 

Under the proper application of the substantial evidence review standard, I would affirm the Board’s decision. From the majority’s contrary conclusion, I 

respectfully dissent.