Appellate Win for Prison Factory Whistleblower

WASHINGTON (CN) – The Federal Circuit ordered relief for a worker whom the government punished for complaining about the use of shoddy materials at a prison factory that makes military helmets.

Troy Miller blew the whistle on cost-cutting while serving as superintendent of industries at a federal correctional facility in Beaumont, Texas.

The worker had 21 years under his belt – managing the prison’s budget, staffing and contracting work – when in October 2009 he spoke out about possible waste of funds.

Two months later, Miller warned the warden that he perceived a sort of “sabotage” – the prison factory was using rejected Kevlar on the assembly line for helmets, seriously compromising their integrity.

Hours after urging the warden to close the facility, Miller learned that he was being reassigned.

Though Miller’s administrative challenge sputtered, the Federal Circuit ruled 2-1 last week that that the evidence is on his side.

Miller spent nearly five years after his helmet complaint relegated to various low-level positions. Later the warden sent Miller to an administrative post outside of the facility where for eight months he was “told to sit on a couch in the building lobby without being given any work to perform,” the Dec. 2 lead opinion states.

Despite having no work assigned to him, Miller was given an office and remained on pay scale commensurate with his superintendent position.

The warden testified that Miller’s reassignments were “absolutely” a waste of his talents, but attributed the moves to concern that Miller posed a threat to the Office of the Inspector General’s investigation of the factory.

Ultimately, an administrative judge found that Miller suffered an adverse personnel action because of disclosures that should have been protected by the Whistleblower Protection Act.

The judge denied Miller relief, however, after finding the warden’s testimony sufficient to believe that Miller would have been reassigned regardless because of the OIG probe.

Reversing on Friday, the Federal Circuit said that claim lacks evidence.

“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 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 a part of a cover up,” U.S. Circuit Judge Kara Fernandez Stoll wrote for the majority. “This record is devoid of any evidence supporting such a theory,” she concluded.

What the record does demonstrate, Stoll said, is that Miller was a “valued executive whose expertise and attention to detail made his product line one of the most successful in the agency.”

U.S. Circuit Judge Jimmie Reyna noted in a concurring opinion that the Merit Systems Protection Board should determine on remand what role and motivation the OIG played in Miller’s reassignment.

“Answering that question is not Mr. Miller’s burden,” Reyna wrote. “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.”

U.S. Circuit Judge Todd Hughes wrote in dissent that the warden’s testimony was enough.

“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,” Hughes wrote.

The Department of Justice did not return a phone call and email seeking comment. Its attorneys Robert Norway, Robert Krischman Jr., Allison Kidd-Miller and Benjamin Mizer argued for the government at oral argument in Washington, D.C.

Miller’s attorney, Dennis Friedman in Philadelphia, likewise did not return a request by phone for comment.

The lead opinion quotes Miller’s testimony about why he blew the whistle.

“I did what I did because there’s a U.S. marine’s life at the end of this helmet, period,” he said. “And it is my responsibility as a superintendent of industries when I see anything that is wrong to report it immediately and stop production.”