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Court Decision Favoring BOP Whistleblower Critical of BOP and OIG

by Derek Gilna

A December 2, 2016 decision by the Federal Circuit Court of Appeals, overturning a finding by the Merit Systems Protection Board, has cast in doubt the operations of the chief internal investigative body of the U.S. Department of Justice – the Office of the Inspector General (OIG) – as well as the federal Bureau of Prisons (BOP).

In its ruling, the appellate court sided with Troy W. Miller, the former chief supervisor of the BOP’s prison industries program at a federal facility in Texas, who claimed that his rights under the federal Whistleblower Protection Act (WPA) had been violated after he exposed alleged wrongdoing in the handling of BOP funds and the manufacture of products by prisoners.

According to the Court of Appeals, “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.” While serving in that capacity he received numerous accolades that highlighted his talent at managing the use of prisoner labor.

However, as previously reported by PLN, the federal prison industries program, also known as UNICOR, has been the subject of criticism over the years, including with respect to shoddy manufacturing practices, dangerous prisoner working conditions and substandard products. For example, PLN reported that the UNICOR program at FCC Beaumont was shut down after inspectors found that substandard materials were being used in the manufacturing of ballistic helmets supplied to the U.S. military. [See: PLN, May 2017, p.44; Jan. 2011, p.20].

The Federal Circuit wrote that “On October 7, 2009, Mr. Miller disclosed to individuals at UNICOR and to [Beaumont] Warden Upton what he perceived to be mismanagement of funds at the factory. 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 ... present during the OIG visit.”

The day after the OIG investigation, Miller advised Warden Upton that there had been an act of “sabotage” on the UNICOR assembly line.

Shortly after the investigation began, the “OIG told Warden Upton to reassign Mr. Miller because he might interfere with the investigation,” the appellate court noted, and shortly thereafter Miller was removed from his position and given assignments that included custodial duties and a position as night supervisor in the Special Housing Unit.

Miller brought an action under the WPA, 5 U.S.C. §§ 2301(b)(8) and 2302(a)(2)(A), and an Administrative Law Judge (ALJ) found that he had made a protected disclosure and suffered adverse employment action. At that point, the burden shifted to the government to show that it would have reassigned him regardless of his whistle blowing. Warden Upton’s testimony that Miller would have been reassigned anyway persuaded the ALJ to enter a finding for the government, but that decision was reversed by the Court of Appeals.

As noted by the appellate court, the “Government’s evidence is weak, particularly when considered in light of the record evidence endorsing Mr. Miller’s character,” including from Warden Upton. “The record further demonstrates that [he] was a valued executive, whose expertise and attention to detail made his product line one of the most successful in the Agency.” Additionally, Miller, a former Marine, was “concerned about the quality of the advanced combat helmets manufactured by the prison factory.”

Although Miller eventually received a favorable ruling from the Federal Circuit, a more serious question remains – which is whether the OIG is in fact the independent investigative body that it claims to be, and an agency capable of properly monitoring the notoriously opaque and misconduct-prone federal Bureau of Prisons. See: Miller v. Department of Justice, 842 F.3d 1252 (Fed. Cir. 2016).

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Related legal case

Miller v. Department of Justice