Summary
The Federal Circuit vacated and remanded a Merit Systems Protection Board decision upholding an EPA employee's removal. The court held that the Board erred in finding draft disciplinary proposals protected by attorney-client privilege because the EPA failed to show the documents were communications with an attorney or produce a privilege log. The court also held that the Board misapplied the Carr factors for whistleblower retaliation by considering the agency's treatment of other whistleblowers under Carr factor 3 (which requires comparison to non-whistleblower employees) and by failing to adequately analyze whether lenient treatment of the subject of whistleblowing indicated retaliatory motive under Carr factor 2. The case addresses attorney-client privilege burdens in federal employment discovery, whistleblower retaliation standards under 5 U.S.C. § 1221(e)(2), and the proper application of Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir. 1999).
Topics
Practice areas
Questions Presented
- Whether the Board erred in ruling that draft notices of proposed sanctions were protected by attorney-client privilege.
- Whether the Board misapplied the Carr factors in determining that the EPA would have removed Mr. Siler regardless of his whistleblowing.
- Whether the Board erred in its Douglas analysis of the reasonableness of the penalty.
Holdings
- The agency failed to meet its burden of proving attorney-client privilege because it did not show the drafts were communications with an attorney. The Board's privilege ruling is reversed.
- The Board erred by considering other whistleblowers rather than non-whistleblowers, and by finding factor 3 favored the agency when no comparator evidence existed. Vacated and remanded.
- The Board failed to consider whether the agency's mild treatment of SAC Ashe suggested a motive to retaliate against Mr. Siler. Remanded for further consideration.
Key quotations
“The Environmental Protection Agency removed Mr. Matthew Siler from his position following an administrative investigation.” (at 3)
“The attorney-client privilege protects communications between a client and an attorney 'for the purpose of obtaining legal advice or services.'” (at 9)
“The Board 'may not simply guess what might happen absent whistleblowing.'” (at 13)
Factual background
Mr. Siler, an EPA Special Agent, operated a personal business selling military collectibles without reporting it, used his government computer for that business, and threatened a contractor with criminal penalties to recover a deposit. After investigating, the EPA proposed and ordered his removal. Mr. Siler also made protected disclosures about his supervisor's misconduct. The administrative judge found the draft disciplinary proposals privileged and affirmed the removal.
Procedural history
The EPA removed Mr. Siler from his position. He appealed to the Merit Systems Protection Board, which affirmed the removal. Mr. Siler timely petitioned for review in the Federal Circuit.
Remand instructions
On remand, the Board should: (1) require production of the draft proposals and any transmittal emails; (2) allow Mr. Siler to reopen the record and depose additional witnesses; (3) reconsider the Carr factors, including whether SAC Ashe is a meaningful comparator and whether the agency's treatment of Ashe indicates a retaliatory motive; (4) if necessary, re-evaluate the Douglas factors in light of additional evidence.