The Carr factors have been adopted by several circuits. See Marcato v. United States Agency for Int'l Dev., 11 F.4th 781, 783, 786-90 (D.C. Cir. 2021); Duggan v. Dep't of Defense, 883 F.3d 842, 846 (9th Cir. 2018); Mottas v. Dep't of the Army, 720 F. App'x 912, 915-18 (10th Cir. 2017); King v. Dep't of the Army, 570 F. App'x 863, 866 (11th Cir. 2014). Although this court has not issued a published opinion addressing the issue, we have utilized the Carr factors in an unpublished opinion.
As the D.C. Circuit and other courts have held, a party can properly exhaust administrative remedies by raising a WPA claim before the MSPB as an affirmative defense to his removal from federal office. See Marcato v. U.S. Agency for Int'l Dev., 11 F.4th 781, 786 (D.C. Cir. 2021) (citing Baca v. Dep't of the Army, 983 F.3d 1131, 1137 (10th Cir. 2020)); accord Parkinson v. Dep't of Just., 874 F.3d 710, 713 (Fed. Cir. 2017) (holding federal employees “may raise a whistleblower reprisal allegation in one of three ways: (i) to the OSC under 5 U.S.C. § 1214, (ii) at the Board by filing an [Individual Right of Action] under 5 U.S.C. § 1221, or (iii) as an affirmative defense to an adverse employment action under 5 U.S.C. § 7701(c)(2)(B)”). And, because this is a “mixed case” where Johnson raised a WPA claim alongside a Title VII claim, it was proper for Johnson to then challenge the MSPB's final decision on his affirmative defenses in this court.