Case: 21-1460 Document: 35 Page: 1 Filed: 10/25/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TIFFANY M. POTTER,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2021-1460
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-1221-18-0165-M-1.
______________________
Decided: October 25, 2021
______________________
A. MARQUES PITRE, Pitre & Associates, LLC, Washing-
ton, DC, argued for petitioner.
BRYAN MICHAEL BYRD, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent. Also represented by
BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., ALLISON KIDD-
MILLER.
______________________
Case: 21-1460 Document: 35 Page: 2 Filed: 10/25/2021
2 POTTER v. DVA
Before MOORE, Chief Judge, BRYSON and PROST, Circuit
Judges.
PROST, Circuit Judge.
This case returns to us following our previous remand
to the Merit Systems Protection Board (“Board”). See Pot-
ter v. Dep’t of Veterans Affs. (Potter I),
949 F.3d 1376
(Fed. Cir. 2020). For the reasons below, we vacate the
Board’s decision in part and remand for further proceed-
ings consistent with this opinion.
I
In Potter I, Tiffany Potter petitioned this court for re-
view of the Board’s December 13, 2018 decision 1 denying
corrective action in her claim filed under the Whistleblower
Protection Act. The Board determined that Ms. Potter
failed to show a prima facie case that her July 10, 2014
email was a contributing factor to her nonselection by the
Department of Veterans Affairs (“agency”) for Chief Nurse
IV in November 2015. See Potter I, 949 F.3d at 1379. We
vacated that portion of the 2018 decision because it relied
on a finding that the parties agreed was erroneous—i.e.,
that Dr. Deering (who canceled the Chief Nurse IV vacancy
in November 2015) did not know of Ms. Potter’s July 10,
2014 email. Id. at 1379–81. We remanded with instruc-
tions to the Board to “consider whether, in view of Dr. Deer-
ing’s knowledge of Ms. Potter’s July 10, 2014 email,
Ms. Potter presented evidence sufficient to satisfy the
knowledge-timing test [of
5 U.S.C. § 1221(e)(1)], or if
Ms. Potter otherwise presented evidence sufficient to
demonstrate a prima facie case of whistleblower reprisal,”
and if so, to “consider whether the [agency] [could] meet its
burden of showing that it would have taken the same
1 The December 13, 2018 decision was the adminis-
trative judge’s (“AJ”) initial decision, but it became the
Board’s final decision. Potter I, 949 F.3d at 1379.
Case: 21-1460 Document: 35 Page: 3 Filed: 10/25/2021
POTTER v. DVA 3
November 2015 personnel action regardless of Ms. Potter’s
protected disclosure.” Id. at 1380.
On remand, the AJ found that a preponderance of the
evidence established that the July 10, 2014 email was a
protected disclosure and that it was a contributing factor
to Ms. Potter’s November 2015 nonselection. J.A. 4–8. The
AJ then considered whether the agency demonstrated by
clear and convincing evidence that it would have taken the
same November 2015 personnel action in the absence of the
July 10, 2014 protected disclosure. The AJ’s consideration
in this regard was guided by the factors articulated in Carr
v. Social Security Administration,
185 F.3d 1318, 1323
(Fed. Cir. 1999)—namely, (1) the strength of the agency’s
evidence in support of its personnel action; (2) the existence
and strength of any motive to retaliate on the part of the
agency officials who were involved in the decision; and
(3) any evidence that the agency takes similar actions
against employees who are not whistleblowers but who are
otherwise similarly situated. J.A. 8–16 (assessing these
three Carr factors). The AJ concluded that the first Carr
factor weighed “heavily” in the agency’s favor, that the sec-
ond Carr factor weighed “modestly” in Ms. Potter’s favor,
and that the third Carr factor was neutral. J.A. 12–16. As
a result of its Carr analysis, the Board found that the
agency demonstrated by clear and convincing evidence that
it would have taken the same November 2015 personnel
action in the absence of the July 10, 2014 protected disclo-
sure. J.A. 16. It therefore denied corrective action.
The AJ’s initial decision became the Board’s final deci-
sion. Ms. Potter timely petitioned this court for review of
that decision. We have jurisdiction under
28 U.S.C.
§ 1295(a)(9).
II
When addressing whether the government has shown
that it would have taken the same personnel action absent
a protected disclosure, “[i]f considerable countervailing
Case: 21-1460 Document: 35 Page: 4 Filed: 10/25/2021
4 POTTER v. DVA
evidence is manifestly ignored or disregarded in finding
[the] matter clearly and convincingly proven, the decision
must be vacated and remanded for further consideration
where all the pertinent evidence is weighed.” Whitmore v.
Dep’t of Labor,
680 F.3d 1353, 1368 (Fed. Cir. 2012). Ms.
Potter argues that in conducting its Carr analysis, the
Board’s decision failed to consider certain evidence that
may have detracted from its overall conclusion. We agree.
Ms. Potter observes that Dr. Deering had to testify be-
fore Congress about the patient-care crisis at the Phoenix
VA Health Care System, whereupon he was asked why he
hadn’t been fired. Pet’r’s Br. 27 (citing J.A. 587–88). She
notes that he had received death threats. And she cites his
testimony that he was “feeling frustrated because people
were going to the [Inspector General],” and that he “just
wished they would come to [him] and say here’s what it is
so we could tackle it together.” Pet’r’s Br. 27 (quoting J.A.
595). According to Ms. Potter, this and other evidence not
addressed in the Board’s decision detract from the reasons
the agency gave for its November 2015 nonselection and
indicate the presence of a retaliatory motive. Pet’r’s
Br. 13–16, 25–27.
The agency disputes the import of the evidence that
Ms. Potter cites. See, e.g., Resp’t’s Br. 38–48. But the ex-
tent to which such evidence affects a Carr analysis involves
factual questions for the Board—not this court in the first
instance. And, as to evidence that the Board’s decision
failed to evaluate (including that set forth above), we can-
not be assured that it was given the consideration and
weight appropriate in a Carr analysis. See Whitmore,
680 F.3d at 1376 (“While we acknowledge that the [Board]
may well have considered the countervailing evidence and
rejected or discounted it for various reasons, with no basis
in [its] opinion to understand [its] logic, we cannot say that
[its] analysis is reasonable or complies with the law for how
proof by clear and convincing evidence is to be evaluated.”).
Remand is therefore appropriate. See
id. at 1368. On
Case: 21-1460 Document: 35 Page: 5 Filed: 10/25/2021
POTTER v. DVA 5
remand, the Board is not limited to considering evidence
bearing on Dr. Deering’s motives; rather, it should also con-
sider any record evidence suggesting a retaliatory motive
on the part of other agency officials and the extent to which
such officials influenced Dr. Deering’s decision. See
id.
at 1371 (“When a whistleblower makes . . . highly critical
accusations of an agency’s conduct, an agency official’s
merely being outside that whistleblower’s chain of com-
mand, not directly involved in alleged retaliatory ac-
tions, . . . is insufficient to remove the possibility of a
retaliatory motive or retaliatory influence on the whistle-
blower’s treatment.”).
Further, while we recognize that the Board discussed
at least some of the abovementioned evidence in its 2018
decision, that discussion was in a different context. There,
the Board was evaluating whether Ms. Potter established
a prima facie case of whistleblower reprisal. See, e.g.,
J.A. 917–22. But here, with the Board now having found
such a prima facie case established, the question is
whether the agency demonstrated by clear and convincing
evidence that it would have taken the same November
2015 personnel action regardless of Ms. Potter’s July 10,
2014 protected disclosure. See Potter I, 949 F.3d
at 1380–81 (rejecting the agency’s argument that the
Board’s 2018 factfinding regarding whether Ms. Potter es-
tablished a prima facie case was sufficient to resolve this
“separate question”).
III
Because the Board’s decision failed to consider certain
evidence that may have detracted from its overall conclu-
sion under a Carr analysis, we (1) vacate the portion of its
decision concerning whether the agency carried its burden
to demonstrate by clear and convincing evidence that it
would have taken the same November 2015 personnel ac-
tion regardless of Ms. Potter’s July 10, 2014 protected dis-
closure and (2) remand for further consideration of this
Case: 21-1460 Document: 35 Page: 6 Filed: 10/25/2021
6 POTTER v. DVA
issue where all the pertinent evidence is weighed. See
Whitmore,
680 F.3d at 1368. The Board’s decision on re-
mand should consider whether, and the extent to which,
such evidence bears on any aspect of its Carr analysis.
VACATED-IN-PART AND REMANDED
COSTS
Costs to Petitioner.
