author: STOLL, Circuit Judge. REYNA, Circuit Judge, HUGHES, Circuit Judge,

text:
    Troy W. MILLER, Petitioner v. DEPARTMENT OF JUSTICE, Respondent
    2015-3149
    United States Court of Appeals, Federal Circuit.
    Decided: December 2, 2016

      Dennis L. Feiedman, Philadelphia, PA, argued for petitioner.
    Robeet Noeway, 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.
    Before REYNA, HUGHES, and STOLL, Circuit Judges.
   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 Whis-tleblower 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.

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 mid-to 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 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.

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. 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. 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 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 Ü.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 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 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 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, 104 S.Ct. 2433, 81 L.Ed.2d 247 (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 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 136 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, 59 S.Ct. 206, 83 L.Ed. 126 (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, 71 S.Ct. 456, 95 L.Ed. 456 (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 quan-turn 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 ‘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 1362, 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)).

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. Thus, this Carr factor could not favor the Government as the Board concluded.

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 1265-266. 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 thé 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 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 twenty-one-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 opérated 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 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 l-ecords, and even the lack of detail in Warden Upton’s recollection, we are not assessing Warden Upton’s credibility. Rather, we are doing precisely 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 thé 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 “[tjhose responsible 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 whis-tleblowers 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 investigations 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 non-whistle-blowers 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 whist-leblowing. 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 Catr 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.

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 whatsoeyer 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 whistle-blower 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 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 1269. 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-W-3, 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 Upton because the agency likely will be required to report this case to Congress. Dissent 1269. 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 136 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.

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 decision-maker here. - ■

A “Cat’s Paw” theory applies when an individual with knowledge of the protected disclosure influences another official to reassign the employee. Thus, the official making the reassignment is simply channeling the wishes of the defacto decision-maker. 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, 131 S.Ct. 1186, 179 L.Ed.2d 144 (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).

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 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.

HUGHES, Circuit Judge,

dissenting.

In a whistleblower case where an employee makes a prima facie case of whistle-blower 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.

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 1261, 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 1263. 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, 59 S.Ct. 206, 83 L.Ed. 126 (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.

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 rebanee on [Warden Upton’s] conclusory and unsupported testimony was not enough to satisfy the Government’s burden.” Maj. Op. at 1263-64 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 1257-58, 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 1259.1 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 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 1260 (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 to “testify as to significant details, such as who at OIG he communicated with.” Maj. Op. at 1260. B.ut 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. Dept 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]”).

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 ofifi-cial’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,” 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 1260. The majority also suggests that there would have been documentation of repeated reassignments. Id. at 1260-61. 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-data-oversight/ data-analysis-documentation/personnel-documentation/#url=Processing-Personnel-Actions.

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 1261. .

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 1261. 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 reassignment. Maj. Op. at 1263 (“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 th'é 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. That suggestion evidences a 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.

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.

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 ease 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 dé 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 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 uncontra-dicted 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.

      . 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.

      . Mr, Miller testified that the night shift was not desirable, and that he had not previously worked in the special housing unit.

      , See also Briley v. Nat’l Archives & Records Admin., 236 F.3d 1373, 1381 (Fed. Cir. 2001); Agoranos v. Dep’t of Justice, 602 Fed.Appx. 795, 805 (Fed. Cir. 2015); Losada v. Dep’t of Def., 601 Fed.Appx. 940, 943 (Fed. Cir. 2015); Cassidy v. Dep’t of Justice, 581 Fed.Appx. 846, 847 (Fed. Cir. 2014); McCarthy v. Int’l Boundary & Water Comm’n, 497 Fed.Appx. 4, 14 (Fed. Cir. 2012); Porzillo v. Dep't of Health & Human Servs., 369 Fed.Appx. 123, 127 (Fed. Cir. 2010); Wadhwa v. Dep’t of Veterans Affairs, 353 Fed.Appx. 435, 438 (Fed. Cir. 2009); Pedeleose v. Dep’t of Def., 343 Fed. Appx. 605, 609-10 (Fed. Cir. 2009); King v. Dep’t of Veterans Affairs, 276 Fed.Appx. 996, 998 (Fed. Cir. 2008); Dennis v. Dep’t of Veterans Affairs, 191 Fed.Appx. 961, 964 (Fed. Cir. 2006); Tomei v. Dep’t of Educ., 113 Fed.Appx. 920, 923 (Fed. Cir. 2004); Kraushaar v. Dep’t of Agric., 60 Fed.Appx. 295, 298 (Fed. Cir. 2003); Meyers v. Dep’t of Veterans Affairs, 33 Fed.Appx. 523, 527 (Fed. Cir. 2002); Maston v. Dep’t of Justice, 10 Fed.Appx. 937, 942 (Fed. Cir. 2001); Beadling v. Dep’t of Justice, 4 Fed.Appx. 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) (non-precedential).

      . 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.

      . 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.

      . 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 Jacobs v. Dep’t of Justice, 35 F.3d 1543, 1546 (Fed. Cir. 1994) (“The substantiality of evidence must take into account whatever in the record fairly detracts from its weight.”).

      . At times, the majority appears to suggest that, even if Warden Uptpn 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 1262. ("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 Fed.Appx. 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.

      . 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.

      . 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 1264-65. 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 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.

      . 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.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES POSTAL SERVICE, Petitioner v. POSTAL REGULATORY COMMISSION, Respondent Gamefly, Inc., Intervenor
    No. 15-1338
    United States Court of Appeals, District of Columbia Circuit.
    Argued November 9, 2016
    Decided December 6, 2016
    David C. Belt, Attorney, U.S. Postal Service, argued the cause for petitioner. Stephan J. Boardman, Chief Counsel, entered an appearance.
    Henry C. Whitaker, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Michael S. Raab, Attorney, David A. Trissell, General Counsel, Postal Regulatory Commission, and Christopher J. Laver, and Anne J. Siar-nacki, Deputy General Counsels.
    Before: ROGERS and GRIFFITH, Circuit Judges, and SILBERMAN, Senior Circuit Judge.
   PER CURIAM:

Under the Postal Accountability and Enhancement Act, Pub. L. No. 109-435, 120 Stat, 3198 (2006), the rates charged by the United States Postal Service for its products are determined primarily according to their classification as either “market-dominant” or “competitive.” Subject to conditions, a product is competitive unless “the Postal Service exercises sufficient market power that it can effectively set the price of such product substantially above costs, raise prices significantly, decrease quality, or decrease output, without risk of losing a significant level of business to other- firms offering similar products.” 39 U.S.C. § 3642(b)(1). MarkeUdominant products are subject to rate regulation by the Postal Regulatory Commission, id. § 3622(a), which entails a price cap that cannot rise more than the rate of inflation in any year, id. § 3622(d)(1). Competitive products are subject only to requirements that effectively set a price floor. See 39 U.S.C. § 3633(a).

In the instant case, the Postal Service petitions for review, contending the Commission’s action denying its parcel reclassification request was arbitrary and capricious, see 5 U.S.C. § 706(2)(A), for failing to acknowledge, much less explain, its decision to depart from precedent granting similar requests. It does not seek review of the denial of the request to transfer the “keys and identification devices” product to the competitive category. We grant the petition.

I.

In 2011, the Commission approved the reclassification of commercial Standard Mail Parcels as competitive. Order No. 689, Order Conditionally Granting Request to Transfer Commercial Standard Mail Parcels to the Competitive Product List, Docket No. MC2010-36, at 20 (P.R.C. Mar. 2, 2011). It did so based largely on the Postal Service’s estimate of its share of the under one-pound parcel market, which, when compared to the market'shares of “formidable competitors” UPS and FedEx, “demonstrated- that the ground shipping market is competitive.” Id. at 14, 16, The Commission granted the request over opposition from the Parcel Shippers Association, id. at 10, and despite the Postal Service’s inability to provide an estimate of the likely impact that , a significant price increase would have on its market share, id. at 15.

One month later, the Commission approved the reclassification of commercial First-Class Mail Parcels as competitive. Order No. 710, Order Adding Lightweight Commercial Parcels to the Competitive Product List, Docket No. MC2011-22, at 11 (P.R.C. Apr. 6, 2011). In its request, the Postal Service had identified three different segments of the under one-pound parcel market (two-to-three day air; consolidator ground; and commercial carrier ground). Id. at 5. It acknowledged that it had captured most of the two-to-three day air segment, but estimated that its competitors’ consolidator ground services made up about 33% of the total market, and commercial ground carriers made up about 20%. Id. at 5-6. Based on the Postal Service’s own market share estimates of 44% (by volume) and 34% (by revenue), -the Commission found “significant competition in the marketplace” and approved the request. Id. at 6,11.

The following year, the Commission approved the reclassification of the single-piece Parcel Post product—a ground delivery service for parcels weighing one pound or more—as competitive; Order No. 1411, Order Conditionally Granting Request to Transfer Parcel Post to the Competitive Product List, Docket No. MC2012-13, at 14 (P.R.C. July 20, 2012). The Postal Service had estimated that this product captured only 17.6% of the ground package retail market, and 1.1% of the' entire ground package market, despite its lower price than comparable UPS and FedEx products. Id. at 5. Based on these estimates, the Commission determined that “[t]he parcel delivery market is competitive,” and that “UPS and FedEx are the dominant carriers, precluding the Postal Service from exercising” market power, id. at 6, and granted the request, id. at 14.

Subsequently, the Postal Service, in the instant case, sought reclassification of retail First-Class Mail Parcels as competitive. It again provided estimates of its market share: 7.2% of the entire parcels market, 7.9% of the 0-70 pound 2-3 day air and ground market, and 38.7% of the under-one pound 2-3 day air and ground market, and again identified the primary competitors as UPS and FedEx.,As with the previous request to reclassify commercial Standard Mail Parcels, the Commission received comments opposing the request. This time the Commission denied the request because “the Postal Service has not presented adequate evidence, beyond mere assertions, sufficient to determine what market Single-Piece, First-Class Mail Parcels operates within.” Order No. 2686, Order Denying Transfer of First-Class Mail Parcels to the Competitive Product Category, Docket No. MC2015-7, at 17-18 (P.R.C. Aug. 26, 2015).

II.

“The fact that the Commission has decided to change ... the nature of the proof required of [the Postal Service] is not, in and of itself, objectionable,” provided it has acknowledged the change and offered a reasoned explanation for it. Hatch v. FERC, 654 F.2d 825, 834 (D.C. Cir, 1981). If the change was acknowledged and explained in a prior order, then the Commission can satisfy its obligations by referencing that order. See Ramaprakash v. FAA, 346 F.3d 1121, 1129 (D.C. Cir, 2003).

In the challenged order, the Commission neither acknowledged a change in course nor explained it. And unlike in the round-trip mailer order, Order No. 2306, Order Denying Request, Docket No. MC2013-57, CP-2013-75 (P.R.C. Dec. 23, 2014), where the Commission performed a more rigorous analysis of market definition and power, id. at 13-54, there was no obvious reason to change course here. In the round-trip mailer case, the Postal Service had acknowledged that no other shipping companies offered a comparable product, but it nevertheless contended that it lacked market power due to competition it faced from non-shipping alternatives. Id. at 2. Given this novel proposition, the Commission had to consider in depth whether to define the markét to include alternative delivery methods such as internet streaming and DVD kiosks. See id. at 19-20!" Order No. 2306 did not announce any overarching change in course by the Commission, either evidentiary or substantive. To the contrary, it cited with approval parcel reclassification Order No. 689, id. at 46 n.32, 48, and it rejected the Postal Service’s argument that it was imposing a new evidentiary burden, id. at 49 & n.34.

Consequently, “the Commission’s duty to explain itself [was not] discharged by its fleeting reference to [the round-trip mailer order] since it [did] not contain announcement of a new standard and supporting rationale either.” See Hatch, 654 F.2d at 834; see also Ramaprakash, 346 F.3d at 1129. Of course, the Commission is not required “to grapple with every last one of its precedents, no matter how distinguishable.” Resp’t Br. 42 (quoting Jicarilla Apache Nation v. U.S. Dep’t of Interior, 613 F.3d 1112, 1120 (D.C. Cir. 2010)). But the previous parcel reclassification orders were relevant to the challenged order on parcel reclassification; it was the round-trip mailer order, in which no other shipping service offered a competing product, that was the distinguishable outlier. Neither could the Commission fulfill its obligation to undertake reasoned decisionmak-ing by distinguishing precedent “simply by emphasizing the importance of considerations not previously contemplated,” id. at 46-48 (quoting Envtl. Action v. FERC, 996 F.2d 401, 411-12 (D.C. Cir. 1993)), when the prior parcel reclassification orders did not involve “materially different situations.” Envtl. Action, 996 F.2d at 411 (quoting Hall v. McLaughlin, 864 F.2d 868, 873 (D.C. Cir. 1989)). In Order No. 2686, the Commission was obliged to “forthrightly distinguish or outrightly reject” those orders. See Hatch, 654 F.2d at 834. Counsel’s effort in its brief to provide a post hoc rationale for the Commission’s order—e.g., that the new standard is a reasonable interpretation of the statute and the earlier parcel-transfer cases had been superceded by a Commission order while the instant request was pending— cannot fill the void. See Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962) (citing SEC v. Chenery, 332 U.S. 194, 196, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947)); Le-Page’s 2000, Inc. v. Postal Regulatory Comm’n, 642 F.3d 225, 232 (D.C. Cir. 2011).

To the extent the Commission maintains any error was harmless, see 5 U.S.C.§ 706, because its denial was without prejudice, see Resp’t Br. 53; see also Zevallos v. Obama, 793 F.3d 106, 115 (D.C. Cir. 2015), the burden on the Postal Service to show prejudice is not “a particularly onerous requirement,” Shinseki v. Sanders, 556 U.S. 396, 410, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009). The Postal Service can refile its request, but it is unclear what evidentiary standard will apply. It is also not a foregone conclusion that the Commission would reach the same result on remand, see Jicarillo, 613 F.3d at 1121, and even if it does, its more fulsome explanation will guide the Postal Service’s submissions in future cases.

In view of our conclusion, it is unnecessary to address the Postal Service’s alternative contention that the Commission’s failure to address the dissenting opinion was arbitrary and capricious. Accordingly, we grant the petition for review and remand the case to the Commission for further proceedings.


author: WILKINS, Circuit Judge:

text:
    UNITED STATES of America, Appellee v. Larry A. GOOCH, Jr., also known as Goo, Appellant
    No. 15-3030
    United States Court of Appeals, District of Columbia Circuit.
    Argued November 4, 2016
    Decided December 6, 2016

      Paul S. Rosenzweig, appointed by the court, argued the cause and filed the briefs for appellant.
    Peter S. Smith, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Elizabeth Trosman and Elizabeth H. Danello, Assistant. U.S. Attorneys. Suzanne G. Curt, Assistant U.S. Attorney, entered an appearance.
    Before: KAVANAUGH and WILKINS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
   WILKINS, Circuit Judge:

Appellant Lariy Gooch, Jr. is currently serving a prison sentence resulting from convictions for a number of crimes, including four felony murders. We upheld those convictions on direct appeal. See United States v. Gooch, 665 F.3d 1318 (D.C. Cir. 2012). In a subsequent motion' to the District Court, under 28 U.S.C. § 2255, Gooch alleged ineffective assistance of counsel at trial. The District Court denied Gooch’s motion but issued a certificate of appeala-bility as to his claim of ineffective assistance of trial counsel in conducting cross-examination of a police detective.

After concluding that we have jurisdiction to consider this appeal, we affirm the District Court’s denial of Gooch’s § 2255 motion.

L

In 2007, Gooch was convicted of numerous crimes in connection with his involvement in the “M Street Crew” gang. Gooch appealed to this Court and his conviction was upheld. Gooch later filed a pro se motion under 28 U.S.C. § 2255 collaterally attacking his conviction on a number of grounds, all alleging ineffective assistance of counsel. This motion was denied by the District Court in a March -7, 2014 opinion. See United States v. Gooch, 23 F.Supp.3d 32 (D.D.C. 2014).

On March 31, 2014, Gooch, acting pro se, submitted a filing to the District Court, entitled “Request for Extension of Time,” asking the District Court to grant an “extension of time of 60-days to file a Certifí-cate of Appealability.” His request stated that, “[bjecause Mr, Gooch is unlearned in the law, he will require more time to properly research and prepare his Certificate of Appealability” and requested “an extension of time of 60 days within which to file his Certifícate of Appealability.” J.A. 174. After receiving Gooch’s filing, the District Court issued a certificate of appealability on April 3, 2014 with respect to Gooch’s claim of ineffective assistance of trial counsel in conducting a cross-examination of a detective at trial. The District Court construed Gooch’s “Request for Extension of Time” as a motion for extension of time to file a notice of appeal under Federal Rule of Appellate Procedure 4(a)(5)(A)© and granted “an extension to file within sixty days of this Certificate.” J.A. 177.

In the midst of what the District Court later referred to as “downsizing, job sharing and sequestration,” the Clerk’s Office apparently failed to mail Gooch a copy of the District Court’s certificate and order. J.A. 212. On January 26, 2015—nearly 10 months after Gooch filed his “Request for Extension of Time”—Gooch filed a letter inquiring about the status of his earlier request. The District Court construed this letter as a motion for extension of time to file a notice of appeal under Federal Rule of Appellate Procedure 4(a)(5) or, alternatively, as a- motion to reopen the time to appeal under Rule 4(a)(6). In a January 28, 2016 Order, the Court denied the motion.

After filing additional motions with the District Court in February 2015, Gooch filed a motion for leave to appeal with this Court on April 27, 2015. On June 15, 2015, the Government filed a motion to dismiss Gooch’s appeal for lack of a certificate of appealability. ■

II.

We begin, as we must, with the question of whether we have jurisdiction to hear Gooch’s appeal.

Under Rule 3 of the Federal Rules of Appellate Procedure, “[a]n appeal permitted by law as of right from a district court to a court of appeals may be taken only by filing a notice of appeal with the district clerk within the time allowed by Rule 4.” Fed. R. App. P. 3(a)(1). Under Rule 4, in a civil case to which the United States is a party, a notice of appeal is considered timely if it is filed “within 60 days after entry of the judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(B). The timely filing of a notice of appeal is “mandatory and jurisdictional”; no appeal can be heard unless the requirements for filing a notice of appeal have been met. United States v. Palmer, 296 F.3d 1135, 1143 (D.C. Cir. 2002) (quoting Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978)).

Gooch made only one filing in the 60 days following the District Court’s denial of his § 2255 motion: his “Request for Extension of Time.” Although this document was not styled as a notice of appeal, it nonetheless may satisfy Rule 3 if it is the “functional equivalent” of what the rule requires. Smith v. Barry, 502 U.S. 244, 248, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992). In order to serve as the “functional equivalent” of a notice of appeal, the document must contain the contents required by Rule 3(c) and “specifically indicate the litigant’s intent to seek appellate review,” Id. at 248-50,112 S.Ct. 678.-

Rule 3(e)(1) contains three requirements, each of which is satisfied or 'excused in this case. First, the filing must “specify the party ... taking the appeal by naming each one in the caption or body of the notice.” Fed. R. App. P. 3(c)(1)(A). The “Request for Extension of Time” identified Gooch in the caption and therefore meets this requirement. Second, the filing must “designate the judgment, order, or part thereof being appealed,” Fed. R. App. P. 3(c)(1)(B), which was accomplished by the document’s explicit reference to the District Court’s denial of Gooch’s § 2255 motion on March 7, 2014. While the “Request for Extension of Time” does-not “name the court to which the 'appeal is taken,”— which is the third and final requirement, Fed. R. App. P. 3(c)(1)(C)—failures to meet this requirement are excused where there is only one court to which the appeal can be taken, which is the case here. See Anderson v. District of Columbia, 72 F.3d 166, 168-69 (D.C. Cir. 1995) (per curiam).

The remaining question is whether the “Request for Extension of Time” sufficiently expresses an intent to appeal. Gooch’s filing contained the following statements and request:

1. On March 7, 2014, this Honorable Court denied Mr. Gooch’s motion pursuant to 28 U.S.C. § 2255. In its denial, the Court did not hold that it would not issue a Certificate of Appealability. He has 14 days to file COA.
2. Because Mr. Gooch is unlearned in the law, he will require more time to properly research and prepare his Certificate of Appealability.
WHEREFORE, for the foregoing reasons, in the interest of justice and principles of equity and fairness, Mr. Gooch respectfully requests that this Honorable Court GRANT an extension of time of 60 days within which to file his Certificate of Appealability.

J.A. 174.

Although the document refers to Gooch preparing and filing “his Certificate of Ap-pealability,” it appears to mean an application for a certificate of appealability because the certificate itself is prepared and issued by the court. See Rules Governing Section 2255 Proceedings for the United States District Courts 11(a) (“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” (emphasis added)). In his filing, Gooch notes that the District Court “did not hold that it would not issue a Certificate of Appealability,” and requests additional time “within which to file his Certificate of Appealability” because “he will require more time to properly research and prepare his Certificate of Appealability.” These statements clearly evince Gooch’s intent to obtain a certificate of appealability. As the only purpose of such a certificate is to pursue an appeal, Gooch’s intent to pursue an appeal can reasonably be inferred from his intent to file an application for the certificate.

This inference is in line with the Supreme Court’s instruction to “liberally construe” the notice of appeal requirement of Rule 3. Smith, 502 U.S. at 248, 112 S.Ct. 678. We also must liberally construe documents filed pro se. Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). Moreover, our conclusion is consistent with decisions of other Courts of Appeals that have found that a request for an extension of time to file an application for a certificate of appealability can serve as the functional equivalent of a notice of appeal where an intent to appeal can be reasonably inferred from the request. See Clark v. Cartledge, 829 F.3d 303, 306-07 (4th Cir. 2016); Rountree v. Balicki, 640 F.3d 530, 536 (3d Cir. 2011); Wells v. Ryker, 591 F.3d 562, 565 (7th Cir. 2010).

The Government asserts that a motion for extension of time in which to apply for a certificate of appealability can never qualify as the functional equivalent of a notice of appeal, because “[t]hey are governed by wholly separate provisions—one by 28 U.S.C. § 2253 (the Antiterrorism and Effective Death Penalty Act), and the other by the Federal Rules of Appellate Procedure.” Appellee Br. 16. The Government cites no authority in support of this contention and, as noted above, it directly contradicts the decisions of the other Courts of Appeals to have considered this question. The Supreme Court’s instruction in Smith v. Barry was clear: “the notice afforded by a document, not the litigant’s motivation in filing it, determines the document’s sufficiency as a notice of appeal.” 502 U.S. at 248, 112 S.Ct. 678. Gooch’s motivation in filing the “Request for Extension of Time”—his desire to obtain an extension to apply for a certificate of ap-pealability under AEDPA—is irrelevant. Instead, we look to whether than document affords notice of his intent to appeal. The Government’s position elevates form over substance and has nothing to commend it.

We therefore find that Gooch’s “Request for Extension of Time,” which was filed within the time period specified by Rule 4, constitutes the functional equivalent of a notice of appeal. Accordingly, because the District Court issued a certificate of ap-pealability as to Gooch’s claim of ineffective assistance of counsel in cross-examining a witness, we have jurisdiction under 28 U.S.C. § 2253(a) to consider the merits of his appeal.

III.

The standard we apply in considering ineffective assistance of counsel claims was articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687, 104 S.Ct. 2052. In sum, the defendant must show both that counsel’s performance was deficient and that the defendant suffered prejudice.

At Gooch’s trial, defense counsel cross-examined a police detective about why Gooch had ceased frequenting an area where he was typically seen:

Q. [Gooch] use[d] to be out there all the time until he became wanted but he was down there every day all the time 18th and M, right in those four blocks, right?
A. Yes.
Q. Now that’s a bit different from disappearing from some- shooting in the alley[,] isn’t it?
A. No.
Q. Why not?
A. Because he shot the people, they put a warrant out for him and he disappeared.

Trial Tr. 48:5-14 (Feb. 21, 2007, a.m. session), J.A. 139.

Gooch claims on appeal that the open-ended question employed by defense counsel—“Why not?”—constitutes deficient performance. It may be that the testimony of the- police1 officer that Gooch “shot the people” was- the result of an improvident question by Gooch’s defense counsel. However, separate from the question of whether counsel’s performance was deficient, Gooch bears the burden of affirmatively showing prejudice—that is, “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694,104 S.Ct. 2052. For these purposes, “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “If the defendant fails to demonstrate prejudice, we may affirm the conviction without deciding whether counsel’s performance was deficient.” United States v. Udo, 795 F.3d 24, 30 (D.C. Cir. 2015).

Gooch has not carried his burden of demonstrating prejudice. The evidence tying Gooch to the murders of Calvin Cooper and Yolanda Miller was substantial and likely had a much greater influence on the jury than this single, fleeting remark made by the testifying detective during the three-month-long trial. As we noted when this case was before us on direct appeal, two individuals—a fellow gang member and a police officer—witnessed Gooch fleeing the scene of the murders. Gooch, 665 F.3d at 1323. The murder weapon was later retrieved from near the crime scene and Gooch’s fingerprint was found on it. Id. In fact, Gooch confessed to the murders, telling one gang member that he had killed Cooper and telling another that he had killed both Cooper and Miller. Id. The evidence at trial also established a motive for the murders—“the ‘word on the street’ was that Cooper and Miller were ‘snitching’ and ‘stealing stashes’”—and Gooch’s role as the “muscle” for the gang “enforcing the gang’s rules, engaging in violence, ánd punishing disloyalty to the gang.” Id. at 1322-23.

Against the backdrop of this evidence, Gooch has not shown “a reasonable probability” that the result of his trial would have been different without-the allegedly deficient open-ended questioning by defense counsel on cross-examination. As a result, Gooch’s claim of ineffective assistance of counsel must be rejected.

⅜ « ⅜

For the foregoing reasons, we affirm the District Court’s decision denying Gooch’s § 2255 motion.

So ordered.,,

      , Presumably, Gooch was referring to filing an application for a certificate of appealability, as the certificate itself is issued by the District Court. See Rules Governing Section 2255 Proceedings for the United States- District Courts 11(a).

      . Appeals of § 2255 motions are governed by Rule 4(a), which applies to civil cases, rather than Rule 4(b), which applies to criminal cases. See United States v. Palmer, 296 F.3d 1135, 1142-43 (D.C. Cir. 2002).

      . Section 2255(b) requires an evidentiary hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). The District Court concluded that Gooch is not entitled to relief and did not hold an evidentiary hearing. Especially where, as here, "the judge deciding the section 2255 motion also presided at petitioner's trial, the [trial] court’s decision not to hold a hearing is 'generally respected as ‘ a sound exercise of discretion.’ ” United States v. Toms, 396 F.3d 427, 437 (D.C. Cir. 2005) (quoting United States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996)). We see no abuse of that discretion here. Accordingly, Gooch is not entitled to an evidentiary hearing.