Siler v. Environmental Protection Agency

Siler was an EPA Special Agent, conducting criminal investigations, 1997-2016. Siler also operated a personal business, selling military collectibles. Siler failed to report that business, as required, used his government computer for personal business, and tried to intimidate a contractor with whom he dealt in conducting that business. That contractor filed a complaint. EPA placed Siler on leave. The Office of the Inspector General cleared Siler of criminal charges. After Siler’s supervisor told Siler things “looked good” for an eventual return to full duty, Siler became involved in an investigation into another supervisor, Ashe. Siler expressed fear of retaliation but stated that Ashe had been sleeping at his desk and had smelled of alcohol. Others testified similarly. Ashe retired before serving his suspension. Siler was investigated for conduct unbecoming an investigator, improperly using his government computer, and failing to report his outside business. Siler, 11 months shy of retirement eligibility, was terminated. He argued that removal was not reasonable and that his statements regarding Ashe constituted protected whistleblowing that caused retaliation. In discovery, EPA produced draft notices of proposed sanctions against Siler, which identified a different decision-maker than previously identified. Siler sought the emails to which these drafts had been attached. EPA sought to claw back the drafts, claiming attorney-client privilege. EPA produced no privilege log. The Merit Systems Protection Board found the drafts privileged and found that Siler would have been removed even without his protected disclosures. The Federal Circuit vacated. EPA did not prove that the allegedly protected communication was made in confidence to its attorney. The Board “may not simply guess what might happen absent whistleblowing.” View "Siler v. Environmental Protection Agency" on Justia Law