Deborah Mouton-Miller v. Department of Homeland Security

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DEBORAH MOUTON-MILLER,
Petitioner
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent
______________________
2025-1173
______________________
Petition for review of the Merit Systems Protection
Board in Nos. AT-1221-19-0742-W-4 & AT-1221-21-0039-
W-4.
______________________
Decided: October 15, 2025
______________________
D EBORAH N. MOUTON -MILLER, Dallas, GA, pro se.
MATTHEW L EWIS , Commercial Litigation Branch, Civil
Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
ALBERT S. I AROSSI, P ATRICIA M. M CCARTHY , YAAKOV R OTH .
______________________
Before L OURIE, REYNA , and CHEN, Circuit Judges.
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M OUTON-M ILLER V. DHS 2
P ER CURIAM .
Former Department of Homeland Security (“DHS”)
employee Deborah Mouton-Miller petitions for review of a
final decision of the Merit Systems Protection Board (“the
Board”) denying her request for corrective action in
individual right of action (“IRA”) appeals AT-1221-19-
0742-W-4 (the “0742 appeal”) and AT-1221-21-0039-W-4
(the “0039 appeal”). S.A. 1–28 (“Board Decision”).1 For the
following reasons, we affirm.
BACKGROUND
In April 2017, Mouton-Miller began a one-year
probationary period as a Supervisory Auditor, GS-14, in
DHS’s Office of Inspector General (“OIG” or “the agency”).
Board Decision, S.A. at 2. During her probationary period,
Mouton-Miller sent emails to OIG management officials
stating that audit templates were missing necessary steps
in accordance with Generally Accepted Government
Auditing Standards (“GAGAS”). Id. In March 2018, an
agency official notified Mouton-Miller that she failed to
complete her supervisory probationary period because of
unsatisfactory performance. See id. at 3. OIG then
reassigned Mouton-Miller to a non-supervisory position as
a Communications Analyst. Id.
Following her reassignment, Mouton-Miller applied for
multiple positions with OIG and other agencies. Id. at 3–
4. She was not selected for any position. See id. at 3.
In June 2019, Mouton-Miller filed a first complaint at
the Office of Special Counsel (“OSC”). Id. She alleged that
OIG reassigned and then removed her from her
supervisory duties in retaliation for protected
whistleblowing activity—her emails regarding the agency’s
1 S.A. refers to the appendix filed with the Response
Brief.
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M OUTON-M ILLER V. DHS 3
alleged noncompliance with audit rules. See P.A. 21.2
While the first complaint was pending, Mouton-Miller filed
a second complaint. Board Decision at 4. In that
complaint, she alleged that OIG officials failed to promote
her internally and interfered with external promotions or
appointment opportunities in retaliation for her emails.
Id.
The OSC closed its investigations and notified Mouton-
Miller of her Board appeal rights. See id. at 3–4. Mouton-
Miller then filed an IRA appeal under the Whistleblower
Protection Act (“WPA”) for each complaint. See id. In both
appeals, the Administrative Judge (“AJ”) determined that
Mouton-Miller’s email communications were protected
disclosures—specifically, disclosures that an employee
reasonably believed showed the violation of an agency rule.
See id. at 5.
The AJ first decided the 0742 appeal. S.A. 30–53
(“0742 Decision”). The AJ determined that Mouton-Miller
had met her burden that she made at least one protected
disclosure that was a contributing factor to her
reassignment. 0742 Decision, S.A. at 45. But the AJ also
determined that the agency had met its burden to show by
clear and convincing evidence that it would have proposed
her reassignment even in the absence of her protected
whistleblowing. Id. The AJ thus denied Mouton-Miller’s
request for corrective action. Id.
The AJ next decided the 0039 appeal. S.A. 54–81
(“0039 Decision”). The AJ determined that Mouton-Miller
failed to meet her burden to show that her protected
disclosures were contributing factors to all but one of the
personnel actions at issue. 0039 Decision, S.A. at 72. As to
the personnel action about which Mouton-Miller met her
burden, the AJ concluded the agency had also met its
2 P.A. refers to the appendix filed with the Petitioner’s
Informal Brief.
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M OUTON-M ILLER V. DHS 4
burden of proving by clear and convincing evidence that it
would have taken the same action even in the absence of
Mouton-Miller’s protected whistleblowing. Id. The AJ
thus denied Mouton-Miller’s request for corrective action
in that appeal as well. Id.
Mouton-Miller then petitioned for review of the AJ’s
initial decisions. Board Decision, S.A. at 1. After
consolidating them, the Board issued an opinion agreeing
with the AJ’s findings. 3 Id. at 2. The Board thus denied
Mouton-Miller’s petitions for review and affirmed each
decision. See id. at 2, 6–7. Mouton-Miller timely petitioned
for review at this court; we have jurisdiction under
28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A).
D ISCUSSION
Mouton-Miller disputes the Board’s decisions in each
IRA appeal. We address each in turn.
I.
The scope of our review is limited by statute. We must
affirm the Board’s decision unless it was “(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). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Higgins v. Dep’t of Veterans Affs.,
955 F.3d 1347, 1353 (Fed. Cir. 2020) (citation omitted).
We analyze IRA appeals brought pursuant to the WPA
under a burden-shifting framework. Miller v. Dep’t of
Just., 842 F.3d 1252, 1257 (Fed. Cir. 2016). First, the
3 While the Board ultimately agreed with the AJ’s
decision denying corrective action in the 0742 appeal, it
modified the AJ’s analysis to comport with the proper legal
standard. Board Decision, S.A. at 9; see infra n.4.
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M OUTON-M ILLER V. DHS 5
“burden lies with the employee to show ‘by a preponderance
of the evidence that he or she made a protected disclosure
under [5 U.S.C.] § 2302(b)(8) that was a contributing factor
to the employee’s [personnel action].” Id. (quoting
Whitmore v. Dep’t of Lab., 680 F 3d 1353, 1367 (Fed. Cir.
2012)). If the employee satisfies that burden, the burden
of persuasion shifts to the agency to show independent
causation—that is, “clear and convincing evidence that [the
agency] would have taken ‘the same personnel action in the
absence of such disclosure.’” Id.
In determining whether the agency has successfully
established independent causation, we apply the Carr
factors. Id. (citing Carr v. Soc. Sec. Admin., 185 F.3d 1318,
1323 (Fed. Cir. 1999)). Three nonexclusive Carr factors
are:
[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.
Id. But 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.” Id. (quoting Whitmore,
680 F.3d at 1374). Rather, the Carr factors are “merely
appropriate and pertinent considerations for determining
whether the agency [has carried] its burden of proving by
clear and convincing evidence that the same action would
have been taken absent the whistleblowing.” Id.
II.
We begin with the 0742 appeal. Mouton-Miller argues
that the Board erred in determining that OIG
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M OUTON-M ILLER V. DHS 6
demonstrated by clear and convincing evidence that it
would have reassigned her even in the absence of her
protected disclosures. See Pet’r Inf. Br. at 1–3. Because
DHS does not dispute that Mouton-Miller satisfied her
burden to show that she made a protected disclosure that
contributed to her reassignment, see Resp. Inf. Br. at 10,
we focus our review on the Board’s analysis of independent
causation under the Carr factors.
Carr factor one is “the strength of the agency’s evidence
in support of its personnel action.” 185 F.3d at 1323.
Under this factor, the Board focused on testimonial
evidence of Mouton-Miller’s performance and management
deficiencies and ultimately concluded that Carr factor one
weighed in favor of finding independent causation. Board
Decision, S.A. at 9–10, 12.4
After careful review of the record, we find that the
Board’s conclusion was supported by substantial evidence.
Mouton-Miller’s second-level supervisor identified
performance deficiencies such as her “micromanagement”
of her subordinates and her “unwillingness to receive
constructive criticism and feedback.” Id. at 9–10. The
Board noted the second-level supervisor’s testimony that
Mouton-Miller “repeatedly cut her off and accused the
supervisor of ‘disrespect’ and of using an inappropriate
‘tone.’” Id. at 10. The Board also noted that Mouton-
Miller’s first-line supervisor considered this to be
4 In his initial decision, the AJ factored Mouton-
Miller’s probationary status into the Carr factor one
analysis. See 0742 Decision, S.A. at 41–42. The Board then
clarified the AJ’s analysis that to the extent the AJ may
have implied a lesser burden than clear and convincing
evidence, that was not appropriate. See Board Decision,
S.A. at 11–12. The Board, however, affirmed the AJ’s
decision under the clear and convincing evidence standard.
Id. at 12.
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M OUTON-M ILLER V. DHS 7
“inappropriate” and for which “he counseled [Mouton-
Miller].” Id.
Mouton-Miller’s attempts to discredit this evidence are
unavailing. Her arguments that the testimony was
“biased,” Pet’r Inf. Br. at 3, are unsupported by the record.
The AJ found Mouton-Miller’s supervisors to be credible—
a finding that is “virtually unreviewable” on appeal. See
Hambsch v. Dep’t of Treasury, 796 F.2d 430, 436 (Fed. Cir.
1986). And the AJ’s credibility determinations are not
“inherently improbable or discredited by undisputed
evidence or physical fact” such that we will disturb them.
See Hanratty v. Dep’t of Transp., 819 F.2d 286, 288 (Fed.
Cir. 1987) (citation omitted). Furthermore, the AJ stated
that Mouton-Miller did not deny or contradict her second-
line supervisor’s accounts of her behavior, underscoring
their credibility. See 0742 Decision, S.A. at 41.
Carr factor two is “the existence and strength of any
motive to retaliate on the part of the agency officials who
were involved in the decision.” 185 F.3d at 1323. The
Board found no evidence that Mouton-Miller’s protected
disclosures related to any rescinded audits or that any of
the agency officials involved in her termination were
implicated by the disclosures; they therefore concluded
that Carr factor two weighed in favor of finding
independent causation. See Board Decision, S.A. at 12–13.
Substantial evidence supports that conclusion. Agency
officials testified that Mouton-Miller’s protected
disclosures had no “real significance” for them because they
were not personally implicated or responsible for the
allegedly deficient audit templates. 0742 Decision, S.A. at
42–43; see Board Decision, S.A. at 12. Furthermore, the
protected disclosures were not outcome-determinative in
any audit, and there was no reputational issue for the
agency or officials involved in the protected disclosures.
See Board Decision at 12. Finally, agency officials testified
that Mouton-Miller’s protected disclosures had no bearing
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M OUTON-M ILLER V. DHS 8
on the termination decision. Id. at 13. Mouton-Miller’s
argument that the AJ “should have given [her arguments
on motivation to retaliate] more weight,” Pet’r Inf. Br. at 7,
is unpersuasive––it is not our role to reweigh the evidence
anew. See Rickel v. Dep’t of the Navy, 31 F.4th 1358, 1366
(Fed. Cir. 2022).
Carr factor three is “any evidence that the agency takes
similar actions against employees who are not
whistleblowers but who are otherwise similarly situated.”
185 F.3d at 1323. The Board found this factor to weigh in
the agency’s favor because Mouton-Miller’s proposed
comparator, Kathleen Hughes, was not a valid comparator.
See Board Decision, S.A. at 14. That, however, was an
incorrect reference to the AJ’s findings: the AJ in fact
found this factor to be neutral. 0742 Decision, S.A. at 45.
Substantial evidence therefore does not support the
Board’s conclusion on the third factor. OIG did not put
forth evidence of a comparator. 0742 Decision, S.A. at 43.
Mouton-Miller argues the Board erred because Hughes is
a valid comparator, as they “performed the same job
functions” and had the same supervisors. Pet’r Inf. Br. at
8. We disagree. Mouton-Miller was a probationary
employee demoted due to her performance and
management deficiencies, while Hughes was a non-
probationary employee who, through no fault of her own,
had an audit retracted for failure to comply with GAGAS
standards. Board Decision, S.A. at 14; 0742 Decision, S.A.
at 44. While the Board correctly identified that there was
no valid comparator, it improperly weighed this factor in
the agency’s favor. See Whitmore, 680 F.3d at 1374 (“[T]he
absence of any evidence relating to Carr factor three can
effectively remove that factor from the analysis.”).
Therefore, no reasonable mind could have accepted the
Board’s conclusion that this factor supported the agency.
However, although Carr factor three favors neither party,
the Board’s conclusion––that the OIG clearly and
convincingly proved it would have removed Mouton-Miller
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M OUTON-M ILLER V. DHS 9
independently of her protected disclosures––is still
supported by substantial evidence based on its findings
under Carr factors one and two.
III.
Next, we review the 0039 appeal. Mouton-Miller
argues that substantial evidence does not support the
Board’s findings that (1) the OIG demonstrated clear and
convincing evidence that it would not have hired her for a
March 2019 detail with the agency’s Audits and
Inspections Quality Assurance Division (“IQO”) even in the
absence of her protected disclosures; and that (2) her
protected disclosures were not contributing factors in her
failure to be hired for other positions. See Pet’r Inf. Br. at
4–5, 11–12, 18, 23–26. We address each argument in turn.
In March 2019, Mouton-Miller applied for a detail
assignment to IQO. See Board Decision, S.A. at 3–4. She
was not selected. Id. The agency does not dispute that
Mouton-Miller’s protected disclosures were a contributing
factor in her nonselection. See Resp. Inf. Br. 13–17
(addressing only the Carr factors). Because Mouton-Miller
disputes whether the OIG established by clear and
convincing evidence of independent causation, we again
review the Board’s analysis of the Carr factors. See Miller,
842 F.3d at 1257.
The Board concluded that Carr factor one favored the
agency due to testimonial and documentary evidence
demonstrating the selectee’s more relevant experience and
that the selectee’s reassignment would cause minimal
disruption. See Board Decision, S.A at 21.
Substantial evidence supports the Board’s conclusion.
First, testimony from agency officials confirmed that the
selectee had previous IQO experience, which Mouton-
Miller did not. See Board Decision, S.A. at 21–22; 0039
Decision, S.A. at 68. Second, an email from another agency
official to Mouton-Miller indicated that the selectee could
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M OUTON-M ILLER V. DHS 10
be more readily reassigned with minimal disruption. See
Board Decision, S.A. at 21; 0039 Decision, S.A. at 69.
Mouton-Miller’s counterargument that she could have
been assigned to the detail with “no disruption,” based on
testimony from her former supervisor, is unavailing. See
Pet’r Inf. Br. at 4. The Board considered this evidence and
found it unpersuasive, instead crediting the testimonial
and documentary evidence. See Board Decision, S.A. at
21–22. Mouton-Miller’s argument is thus another
invitation for us to reweigh the evidence. We again decline
to do so. See Rickel, 31 F.4th at 1366.
The Board found that Carr factor two weighed in the
agency’s favor because “knowledge of [Mouton-Miller’s]
disclosure within the agency was very limited, there was
no evidence that [her] GAGAS disclosure broadly
implicated management officials or employees in general,
and the management officials credibly testified that the
impact and import of [her] disclosure was minimal.” Board
Decision, S.A. at 22. The Board also found no evidence that
an agency official with knowledge of the protected
disclosures “exerted any influence on the selecting official”
or the selection decision. Id.
Substantial evidence supports the Board’s finding of no
motive to retaliate. There was no evidence that the
selecting official knew of Mouton-Miller’s protected
disclosures or that the protected disclosures personally
implicated the selecting official. See id. Furthermore,
there was no evidence that an agency official with
knowledge of her protected disclosures influenced the
selection process in any way. See id. Mouton-Miller’s
arguments to the contrary are unpersuasive. Indeed, she
appears to make the same Carr factor two argument from
her 0742 appeal in that she asks us to reweigh the evidence
before the Board. See Pet’r Inf. Br. at 6–7. Her argument
is unavailing for the same reason: it is not our role to
reweigh the evidence anew. See Rickel, 31 F.4th at 1366.
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M OUTON-M ILLER V. DHS 11
The Board did not make its own explicit conclusion as
to Carr factor three; rather, it adopted the AJ’s position and
found that this factor was neutral due to lack of evidence
of valid comparators. See Board Decision, S.A. at 23; 0039
Decision, S.A. at 71.
Substantial evidence supports the Board’s conclusion,
as neither the agency nor Mouton-Miller presented
comparators. Board Decision, S.A. at 23; 0039 Decision,
S.A at 71. While she maintains otherwise, Mouton-Miller
did not present any valid comparators because she does not
explain how the comparators she presents are applicable to
the March 2019 IQO position. See Pet’r Inf. Br. at 9. Thus,
Carr factor three does not impact the independent
causation analysis. See Whitmore, 680 F.3d at 1374.
Because the Carr factors, on balance, weigh in favor of the
agency, substantial evidence supports the Board’s
conclusion.
Mouton-Miller next disputes the Board’s conclusion
that her protected disclosures were not contributing factors
in her nonselection for several other positions. See Pet’r
Inf. Br. at 18–26. The positions were: (1) a detail
assignment to IQO in August 2018; (2) a Supervisory
Auditor with the U.S. Defense Contract Audit Agency
(“DCAA”); (3) Director, Quality, Management, and
Training (“QMT”); and (4) Lead Auditor with the U.S.
Environmental Protection Agency (“EPA”). Board
Decision, S.A. at 3–4.
Substantial evidence supports the Board’s conclusion
as to each position. The Board found no evidence that any
official with knowledge of the protected disclosures
influenced Mouton-Miller’s nonselections. Id. at 19
(finding official with knowledge of disclosures was not part
of selection process for QMT detail); id. (crediting
consistent testimony that hiring officials for QMT detail
were unaware of the protected disclosures); id. at 20
(crediting testimony that the eventual selectee for the EPA
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M OUTON-M ILLER V. DHS 12
position did not influence the hiring process); see id. at 15–
16 (Mouton-Miller acknowledging that official with
knowledge of disclosures was not part of the selection
process for the August 2018 IQO detail). The Board also
found that Mouton-Miller did not present evidence to meet
her burden for any of the positions. See id. at 15 n.3
(finding that Mouton-Miller did not challenge the AJ’s
finding that “she had not provided any documentary or
testimonial evidence regarding her nonselection for the
DCAA position”); id. at 16–17, 20 (finding that Mouton-
Miller did not provide evidence that agency officials with
knowledge of the protected disclosures influenced the
August 2018 IQO or EPA positions). The Board reasonably
credited the evidence and found that Mouton-Miller’s
assertions of retaliatory influence were unsupported by the
record.
CONCLUSION
We have considered Mouton-Miller’s remaining
arguments and find them unpersuasive. For the foregoing
reasons, we affirm the Board’s determinations denying
Mouton-Miller’s petitions for review of the 0742 and 0039
appeals.
AFFIRMED
COSTS
No costs.
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