Federal Circuit: No Need for MSPB to Re-Analyze Carr, Errors in Investigation Different from Errors in Discipline

On May 7, 2026, The Federal Circuit issued a precedential decision holding the Merit Systems Protection Board (MSPB) did not need to reanalyze and could adopt the administrative judge’s (AJ) analysis of the Carr factors, which are the factors courts consider when analyzing a whistleblower reprisal defense. Additionally, the appeals court affirmed the Board’s rejection of the employee’s affirmative defense of harmful procedural error, holding that alleged procedural errors in the investigation that informed the eventual disciplinary action cannot by themselves form the basis for a defense, unlike where there is harmful procedural error that occurs during the disciplinary process.

In September 2012, appellant was appointed to be a Program Manager for the Department of Veterans Affairs (“VA”) Human Resource Center (HRC) and he was subsequently reassigned by the HRC Director to serve as an Associate Director for Contract Management in October 2014. In December 2014, appellant emailed the HRC Director and Deputy Director contending that another employee was pre-selected for a promotion and challenged the process by which staff were selected for step increases.

Following appellant’s criticisms, he was reprimanded by the Agency in January 2015 and was charged with “inappropriate conduct.” The appellant filed a whistleblower complaint with the Office of Special Counsel, exhausted his remedies, and subsequently filed two individual right of action appeals.

Subsequently, several employees alleged that the appellant made inappropriate comments, created a hostile work environment, and engaged in harassment. An investigation was conducted into the allegations, and it was determined there was “little doubt that there were lapses in professionalism which a reasonable person would feel contributed to a hostile work environment.” As a result of the investigation, the acting HRC Director proposed appellant’s removal for inappropriate conduct. Appellant’s removal was sustained by the deciding official and subsequently affirmed by an MSPB AJ in August 2017. The AJ held the VA demonstrated “by clear and convincing evidence that it had strong evidence to support the removal action.” Appellant petitioned the Board for review. The Board subsequently affirmed the AJ’s initial decision and determined appellant failed to establish his affirmative defenses of harmful error and whistleblower reprisal. In so doing, the Board did not re-analyze the Carr factors and instead adopted the MSPB AJ’s analysis, which was affirmed, and became the Board’s final decision. On appeal to the Federal Circuit, the appellant took issue with the MSPB AJ’s analysis of the Carr factors and the rejection of his harmful procedural error defense. 

The Federal Circuit’s decision recited the burden-shifting framework of a whistleblower retaliation claim: that a “former employee must prove 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 termination,” quoting from Whitmore v. Dep’t of Lab., 630 F.3d 1353, 1367 (Fed. Cir. 2012). If there is a prima facie showing that the employee engaged in whistleblowing and, within a short period suffered an adverse action, the burden of proof shifts to the Agency to demonstrate it would have taken the same action absent a disclosure, which can be proven through an analysis of the Carr factors as outlined in Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). The factors are “the strength of the agency’s evidence in support of its personnel action; the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated.” The appellant argued that the Board did not perform the required Carr analysis in affirming the MSPB AJ and made several arguments about the MSPB AJ’s analysis. He argued that if the Carr analysis was proper and accounted for all the evidence, reversal or vacatur would be required.

But the Federal Circuit held the Board did not need to reanalyze the Carr Factors because the administrative judge “substantively analyzed all three Carr factors in the initial decision” and therefore “the Board had no obligation to re-invent the wheel.” The panel also addressed his specific arguments about the Board’s purported exclusion of testimony and disregard of impeachment evidence, finding them unpersuasive.

The Federal Circuit next addressed whether the Board erred in overruling the appellant’s harmful procedural error defense. The appellant believed that the agency committed errors during the course of the investigation by not speaking with character witnesses, not speaking to appellant at the start of the investigation, and not interviewing the appellant’s proposed witnesses. The Federal Circuit explained harmful error is “[e]rror by the agency in the application of its procedures that is likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error,” as defined in 5 C.F.R. § 1201.4(r). 

Here, the appeals court affirmed the Board’s treatment of the harmful error defense. The appellant argued that the administrative investigation board (AIB) assigned to investigate his alleged misconduct excluded character witnesses from its investigation and impeded his ability to provide a full and complete defense, including a failure to speak with him prior to the commencement of the investigation. But the Board found, and the Federal Circuit affirmed, that this argument was unpersuasive. The Federal Circuit held, first, that because an AIB is an investigative body rather than an adjudicative body, it was “not required to follow the same strict procedures that [appellant] was entitled to receive, and did receive, before the agency and the board.” Second, the Federal Circuit held that the appellant had ample opportunity to present the evidence he claimed was excluded prior to his removal, at both a five-hour oral reply, and through documents submitted to the deciding official, as well as at the Board, where fifteen witnesses were approved. Despite that opportunity, the Federal Circuit held, the agency and the Board both found the evidence supported his removal, cutting against the appellant’s argument that if his evidence had been considered during the investigation, a different outcome likely would have been reached.

As such, the Federal Circuit affirmed the Board’s analysis and decision, and held the appellant had “not shown that the application of the procedures [he claims were violated] would have been likely to cause the agency to reach a different conclusion,” rejecting his harmful procedural error defense.

Read the Full Opinion: Oliva v. DVA