Petition for Writ of Certiorari — Vaughn Hoeflin Standley, Petitioner v. Merit Systems Protection Board

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Appendix A: U.S. Court of Appeals for the Federal

Circuit Opinion, November 13, 2018

NOTE: This disposition is nonprecedential.

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT

VAUGHN HOEFLIN STANDLEY,

Petitioner

V.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

DEPARTMENT OF ENERGY,

Intervenor

2017-1691

Petition for review of the Merit Systems

Protection Board in No. DC-1221-16-0168-W-1.

Decided: November 13, 2017

la

VAUGHN HOEFLIN STANDLEY, Gainesville, VA, pro

se.

TARA JEAN KILFOYLE, Office of General Counsel,

Merit Systems Protection Board, Washington, DC,

for respondent. Also represented by BRYAN G.

PoLIsuK, KATHERINE M. SMITH, JEFFREY A. GAUGER.

ANTHONY F. SCHIAVETTI, Commercial Litigation

Branch, Civil Division, United States Department of

Justice, Washington, DC, for intervenor. Also

represented by CHAD A. READLER, ROBERT E.

KIRSCHMAN, JR., ALLISON KIDD-MILLER.

Before PROST, Chief Judge, WALLACH and HUGHES,

Circuit Judges.

PER CURL.

Petitioner Vaughn Hoeflin Standley appeals a

final order of the Merit Systems Protection Board

("MSPB") affirming an administrative judge's ("AJ")

dismissal of his individual right of action ("IRA")

appeal for lack of jurisdiction. See Standley v. Dept

of Energy, No. DC-1221-160168-W-1, 2017 WL 56181,

at ¶ 1 (M.S.P.B. Jan. 3, 2017) (final decision);

Standley v. Dept of Energy, No. DC-122116-0168-W1 (M.S.P.B. Jan. 13, 2016) (initial decision) (Resp't's

App. 14-25). We have jurisdiction pursuant to 28

U.S.C. § 1295(a)(9) (2012). We affirm.

2a

BACKGROUND

Mr. Standley works as a general engineer in the

Department of Energy's ("DOE") National Nuclear

Security Administration ("NNSA"), Office of Nuclear

Detonation Detection ("NDD"). See Standley, 2017

WL 56181, at ¶ 2; Resp't's App. 30-31. Mr. Standley's

responsibilities include work on instrumented

payloads that the NNSA contributes to a Department

of Defense ("DOD") system of nuclear detonation

detection. Resp't's App. 33-34. In January 2014, Mr.

Standley told his supervisor there was "a need to

field" a third iteration of the Space Atmospheric

Burst Reporting System ("SABRS3").' Id. at 33, 35.

In July and August 2014, Mr. Standley reported to

his supervisor that he had started the process to

begin integrating SABRS3 on a U.S. Air Force

satellite. See id. at 35-36. The supervisor responded

that he was considering de-funding SABRS3 because

he did not support NNSA's work on the project

beyond "provid[ing] the payload" and did not "want

[the] NNSA stuck paying for [SABRS3] for the next

[twenty] years." Id. at 36. Mr. Standley responded,

"Understood. We will stop when you decide." Id.

In September 2014, the DOE advertised a

Director position in the NDD. Id. The Deputy

Director of the NDD announced that current

employees in the office would not be considered for

the Director posting, yet Mr. Standley still submitted

his application for the position. Id. He was referred

to the hiring manager for further consideration, but

' SABRS3 is the third iteration of a satellite payload,

SABRS, designed to detect nuclear detonation in space. See

Standley, 2017 WL 56181, at ¶ 2; Resp't's App. 33.

3a

was ultimately not selected. Id. The position was

canceled, re-posted in March 2015, and eventually

awarded to an office colleague of Mr. Standley's. Id.

at 36-37, 40.

In November 2014, Mr. Standley filed a grievance

with the DOE regarding his non-selection for the

Director position, which was denied. Standley, 2017

WL 56181, at ¶ 3; Resp't's App. 36-37. In February

2015, Mr. Standley then filed a complaint with the

Office of Special Counsel ("OSC"), alleging he was not

allowed to compete for the Director position. See

Standley, 2017 WL 56181, at ¶ 4. However, the OSC

investigated, terminated, and closed Mr. Standley's

file without taking action in September 2015,

notifying him of his right to appeal to the MSPB. See

id.; Resp't's App. 41, 83-84.

Mr. Standley timely filed an IRA appeal with the

MSPB, alleging, inter alia, that the DOE retaliated

against him, thereby violating 5 U.S.C. §

2302(b)(8)(A) and (b)(9)(D) of the Whistleblower

Protection Act ("WPA"), Pub. L. No. 101-12, 103 Stat.

16 (1989) (codified as amended by Whistleblower

Protection Enhancement Act of 2012 ("WPEA"), Pub.

L. No. 112-199, 126 Stat. 1465 in scattered sections

of 5 U.S.C.).2 Resp't's App. 14, 33. Specifically, Mr.

2

Section 2302(b) provides in relevant part that:

Any employee who has authority to take, direct others to

take, recommend, or approve any personnel action, shall

not, with respect to such authority—. (8) take or fail to

take, or threaten to take or fail to take, a personnel action

with respect to any employee or applicant for employment

because of—(A) any disclosure of information by an

employee or applicant which the employee or applicant

reasonably believes evidences—(i) any violation of any law,

.

4a

.

Standley alleged that: he "disclosed the need to

implement SABRS3" and "refus[ed] to participate in

[his supervisor's] plan to cancel SABRS3" because the

program was necessary to comply with § 1065 of the

National Defense Authorization Act of 2008 ("2008

NDAA"),3 id. at 18, 61; and those disclosures directly

protects employees who "refuse to obey an order that

would require the individual to violate a law, rule, or

regulation." Id. § 2302(b)(9)(D). contributed to his

supervisor "conspir[ing] to frustrate [his] attempts to

compete for" the Director position, id. at 18 (internal

quotation marks and citation omitted). In its initial

decision, the AJ dismissed the appeal for lack of

jurisdiction because Mr. Standley "failed to make a

nonfrivolous allegation that he made a protected

disclosure under 5 U.S.C. § 2302(b)(8)[(A)]." Id. at 17.

Specifically, the AJ found that Mr. Standley's

asserted disclosures pertained to "a policy decision"

rather than a protected disclosure. Id. at 18.

Further, the AJ rejected Mr. Standley's §

2302(b)(9)(D) claim because Mr. Standley failed to

produce evidence that he was retaliated against for

refusing to obey an order that would require him to

violate the 2008 NDAA. Id.

rule, or regulation, or (ii)

a substantial and specific

danger to public health or safety.

.

.

.

§ 2302(b)

(emphases added). Section

5

U.S.C.

2302(b)(9)(D)

Section 1065 of the 2008 NDAA provides, in its entirety,

that "[t]he Secretary of Defense shall maintain the capability for

space-based nuclear detection at a level that meets or exceeds

the level of capability as of the date of the enactment of this Act."

Pub. L. No. 110-181, § 1065, 122 Stat. 3, 324 (2008).

5a

On petition for review, the MSPB issued a final

decision affirming the AJ's dismissal for lack of

jurisdiction. See Standley, 2017 WL 56181, at ¶ 1.

The MSPB determined that Mr. Standley failed to

make a non-frivolous allegation that the matter he

disclosed was one that a reasonable person in his

position would believe evidenced any of the protected

disclosures under § 2302(b)(8)A given the Secretary

of the DOD, not employees of the DOE, is responsible

for maintaining the "capability for space-based

nuclear detection." Id. at ¶ 11 (quoting 2008 NDAA

§ 1065). Among other things, the MSPB noted that §

1065 of the 2008 NDAA does not limit the DOD to

"any particular device or system to maintain spacebased nuclear detection capability," so it would not be

objectively reasonable that defunding SABRS3

evidenced a "violation of law." Id. The MSPB also

determined that Mr. Standley failed to

"substantiatefl his [§ 2302(b)(9)(D)] allegation that

the agency retaliated against him for his opposing the

discontinuation of the SABRS3 program."

Id. at 'f 15.

DISCUSSION

I. Standard of Review and Legal Standard

We review the MSPB's legal determinations,

including whether the MSPB has jurisdiction over an

appeal, de novo. Johnston v. Merit Sys. Prot. Bd., 518

F.3d 905, 909 (Fed. Cir. 2008). "[A]lthough we may

review freely" the MSPB's jurisdictional conclusions,

"we are bound by the AJ's factual determinations

unless those findings are not supported by

substantial evidence." Bolton v. Merit Sys. Prot. Bd.,

154 F.3d 1313, 1316 (Fed. Cir. 1998). "The petitioner

6a

bears the burden of establishing error in the

[MSPB]'s decision." Harris v. Dept of Veterans

Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998).

Congress has provided federal employees the

right to seek corrective action from the MSPB

whenever personnel action is taken in retaliation for

whistle blowing activities.

5 U.S.C. § 1221(a)

("Subject to the provisions of subsection (b) of this

section and subsection 1214(a)(3), an employee

may, with respect to any personnel action taken

as a result of a prohibited personnel practice

seek

described in [] 2302(b)(8) or [] 2302(b)(9)

corrective action from the [MSPB]."). The MSPB has

jurisdiction over whistleblower cases "if the

[petitioner] has exhausted his administrative

remedies before the OSC and makes non-frivolous

allegations that (1) he engaged in whistleblowing

activity by making a protected disclosure under 5

U.S.C. § 2302(b)(8)," or engaged in other protected

activity as specified in 5 U.S.C. § 2302(b)(9); and "(2)

the disclosure was a contributing factor in the

agency's decision to take or fail to take a personnel

action as defined by 5 U.S.C. § 2302(a)(2)[(A)]."

Yunus v. Dept of Veterans Affairs, 242 F.3d 1367,

1371 (Fed. Cir. 2001) (internal quotation marks

omitted); see Hicks v. Merit Sys. Prot. Bd., 819 F.3d

1318, 1320 (Fed. Cir. 2016) (explaining that the

WPEA expanded the IRA appeal right to include,

inter alia, prohibited practices under § 2302(b)(9)(D)).

.

.

.

"[A] communication concerning policy decisions

that lawfully exercise discretionary authority" is not

a protected whistleblower disclosure, unless the

employee providing the disclosure reasonably

believes that the disclosure evidences a "violation of

7a

any law, rule, or regulation," or "a substantial and

specific danger to public health or safety." 5 U.S.C. §

2302(a)(2)(D); see Lachance v. White, 174 F.3d 1378,

1381 (Fed. Cir. 1999) ("The WPA is not a weapon in

arguments over policy .

."); O'Donnell v. Dept of

Agric., 120 M.S.P.R. 94, at ¶ 14 (2013), aff'd sub nom.

O'Donnell v. Merit Sys. Prot. Bd., 561 F. App'x 926

(Fed. cir. 2014) (dismissing an IRA appeal where

disclosures consisted of a "fairly debatable policy

dispute"). The test to determine if a petitioner had a

reasonable belief that his disclosure evidenced

wrongdoing asks whether a "disinterested observer

with knowledge of the essential facts known to and

readily ascertainable by the employee [could]

reasonably conclude that the actions of the

[G]overnment evidence[d]" such wrongdoing.

Lachance, 174 F.3d at 1381.

.

.

II. The MSPB Lacks Jurisdiction over Mr. Standley's

Appeal

The main issue on appeal is whether the MSPB

erred in concluding that it lacked jurisdiction to

consider Mr. Standley's IRA appeal because he failed

to non-frivolously allege violations of the WPA.

Specifically, the parties dispute whether Mr.

Standley's alleged disclosures qualify for protection

under § 2302(b)(8)(A) or (b)(9)(D). See

Pet'r's Br. 3; Resp't's Br. 10-11.

On appeal, the parties do not contest that Mr.

Standley has exhausted his OSC remedies. See generally

Pet'r's Br.; Resp't's Br.

Mr. Standley also argues on appeal that adverse

retaliatory actions stemmed from those disclosures, namely, his

failure to obtain an interview for a promotion and his lower

Nn

Mr. Standley argues that his disclosures were

protected under the WPA because he reasonably

believed that: (1) he disclosed and refused to obey an

action, namely, his supervisor's decision not to fund

SABRS3, which he reasonably believed violated §

1065, and funding the SABRS3 program was not a

public policy matter, Pet'r's Br. 2; see id. at 6-8; and

(2) this action was a "danger to public health and

safety" because of "the potential loss of our

government's ability to detect nuclear detonations,"

id. at 3. We disagree.

Mr. Standley's allegations amount to a policy

dispute, and the record demonstrates that a

disinterested observer could not reasonably believe

Mr. Standley's disclosures evidenced either a

violation of law or a danger to public health and

safety. As an initial matter, decisions related to the

development of the nuclear detonation program in

space fit within the exception to disclosures for

"policy decisions that lawfully exercise discretionary

authority." 5 U.S.C. § 2302(a)(2)(D); see O'Donnell,

561 F. App'x at 930 ('[A]n exercise of discretionary

authority is not a 'violation of the law."). As the

MSPB found, the record shows that decisions related

to SABRS3 were committed to an interagency

discretionary review process and not to any

particular individual acting alone, let alone an

employee of the DOE. See Standley, 2017 WL 56181,

performance rating. Pet'r's Br. 4; see id. at 17-48. Because we

find that Mr. Standley failed to demonstrate that his disclosures

were statutorily protected, we need not consider whether these

actions constitute retaliation under the NAPA.

at ¶J 11, 13 (describing the interagency process of

decision making).

Mr. Standley contends that his disclosure is

nevertheless protected because an observer would

have a reasonable belief that it evidenced a violation

of § 1065 of the 2008 NDAA. That section places

responsibility for spacebased nuclear detection on the

Secretary of the DOD, not the DOE or its employees.

See 2008 NDAA § 1065. The parties agree that the

DOE provides support related to such space-based

nuclear detonation detection. See Pet'r's Br. 7, 12;

Resp't's Br. 12-14. However, as we stated above,

neither the NDD nor NNSA are statutorily bound by

the directives of the 2008 NDAA.

Any

pronouncements or decisions made by members of the

NDD and NNSA would amount to policy

considerations taken to aid the Secretary of the DOD,

with whom ultimate legal authority rests.

Moreover, § 1065 does not prescribe any

particular means or technology by which space-based

nuclear detection capabilities must be maintained.

See 2008 NDAA § 1065. Rather, it is only violated if

detection capability falls below a pre-set standard,

and a National Security Council ("NSC") interagency

policy committee has the discretion to decide how

best to maintain that standard. See Resp't's App. 38.

Mr. Standley alleges that "[his supervisor's] actions

violated [the law]" by calling for an NSC interagency

policy committee meeting to recommend ceasing

funding SABRS3. See Pet'r's Br. 2. However, Mr.

Standley has already conceded, and the MSPB found

as instructive, that other senior policy makers in the

U.S. Air Force and U.S. Strategic Command opposed

funding SABRS3 as well. Standley, 2017 WL 56181,

l0a

at ¶ 11 (referencing Resp't's App. 44 (alleging a

"particular group in [the interagency committee]

would prefer that the SABRS program be

terminated")). A disinterested observer could not

reasonably conclude that recommending to an

external agency how to exercise its discretion,

particularly where the recommendation fit within the

agency's available and considered options, is a

violation of the law.

Finally, for many of the same reasons expressed

above, we find that a disinterested observer could not

reasonably believe that Mr. Standley's report to his

supervisor regarding funding for SABRS3 evidences

a danger to public health or safety. "[T]he disclosure

of a danger only potentially arising in the future is

not a protected disclosure" if it is not "substantial and

specific." Chambers v. Dept of Interior, 515 F.3d

1362, 1369 (Fed. Cir. 2008) (citations omitted).

Chambers lays out a number of factors to consider in

determining whether a disclosure is sufficiently

substantial and specific to warrant protection,

including "likelihood of harm," "speculative or

improbable conditions," and "specificity of the alleged

danger." Id. at 1369. The MSPB weighed these

factors and found that, while degradation in

capability to detect nuclear blasts in space could

affect public health and safety, Mr. Standley had not

alleged quantifiable potential harm or likelihood of

harm and, therefore, did not meet his burden to show

"that such an occurrence is more than a possibility

occurring at an undefined point in the future."

Standley, 2017 WL 56181, at ¶ 12 (footnote omitted).

Mr. Standley has not challenged these findings on

appeal. See generally Pet'r's Br. We see no error in

the MSPB's analysis. Thus, Mr. Standley has failed

ha

to make a non-frivolous allegation that his

statements are protected by the WPA or that the

MSPB improperly dismissed his appeal for lack of

jurisdiction.

CONCLUSION

We have considered Mr. Standley's remaining

arguments relating to lack of jurisdiction and find

them unpersuasive. Accordingly, the Final Order of

the Merit Systems Protection Board is

AFFIRMED

COSTS

Each party shall bear its own costs.

12a

Appendix B: Merit System Protection Board Final

Order, January 3, 2017

UNITED STATES OF AMERICA MERIT SYSTEMS

PROTECTION BOARD

VAUGHN HOEFLIN STANDLEY,

Appellant,

V.

DEPARTMENT OF ENERGY,

Agency.

DOCKET NUMBER

DC-1221-16-0168-W-1

DATE: January 3, 2017

THIS FINAL ORDER IS NONPRECEDENTLAL'

Richard R. Renner, Washington, D.C., for the

appellant.

Saul Ramos, Albuquerque, New Mexico, for the

agency.

BEFORE

A nonprecedential order is one that the Board has

determined does not add significantly to the body of MSPB case

law. Parties may cite nonprecedential orders, but such orders

have no precedential value; the Board and administrative judges

are not required to follow or distinguish them in any future

decisions. In contrast, a precedential decision issued as an

Opinion and Order has been identified by the Board as

significantly contributing to the Board's case law. See 5 C.F.R. §

1201.117(c).

1

lb

Susan Tsui Grundmann, Chairman Mark A.

Robbins, Member

FINAL ORDER

T1

The appellant has filed a petition for review of

the initial decision, which dismissed his individual

right of action (IRA) appeal for lack of jurisdiction.

Generally, we grant petitions such as this one only

when: the initial decision contains erroneous findings

of material fact; the initial decision is based on an

erroneous interpretation of statute or regulation or

the erroneous application of the law to the facts of the

case; the administrative judge's rulings during either

the course of the appeal or the initial decision were

not consistent with required procedures or involved

an abuse of discretion, and the resulting error affected

the outcome of the case; or new and material evidence

or legal argument is available that, despite the

petitioner's due diligence, was not available when the

record closed. Title 5 of the Code of Federal

Regulations, section 1201.115 (5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we

conclude that the petitioner has not established any

basis under section 1201.115 for granting the petition

for review. Therefore, we DENY the petition for

review. Except as expressly MODIFIED by this Final

Order, we AFFIRM the initial decision.2

BACKGROUND

¶2

The appellant is a General Engineer, NN-4,

with the agency's National Nuclear Security

We have modified the initial decision to correct the

administrative judge's findings regarding exhaustion.

2

2b

Administration. Initial Appeal File (IAF), Tab 1. In

January 2014, he told his supervisor, the Director of

the Office of Defense Nuclear Nonproliferation

Research and Development (Director), and the

Deputy Director of his belief that the agency needed

to field the Space Atmospheric Burst Reporting

System (SABRS3). Id. at 6. SABRS3 is a satellite

payload designed to detect a nuclear detonation in

space. M. at 4. On July 31, 2014, the appellant told

the Director that he had approved plans developed by

the Los Alamos National Laboratory to begin

integrating SABRS3 on a U.S. Air Force (Air Force)

Space Test Program satellite. Id. at 6. On August 8,

2014, the Director told the appellant that he had

decided to stop funding SABRS3. Id. at 7.

On September 9, 2014, the agency advertised

¶3

the position of Director for the Office of Nuclear

Detonation Detection (NDD). Id. The appellant

asserts that, on September 14, 2014, the Deputy

Director announced that current employees in the

appellant's department would not be considered for

an upcoming job posting and, if they desired an

explanation of the policy, they should speak with him

privately. Id. The appellant submitted his application

for the position and was referred to the hiring

manager. Id. The appellant was not selected and the

vacancy announcement was canceled on or about

October 27, 2014. Id. The appellant grieved his

nonselection for the position on November 10, 2014.

Id. at 7-8. The agency denied the grievance on

January 7, 2015. Id.

On February 5, 2015, the appellant filed a

¶4

complaint with the Office of Special Counsel (OSC),

alleging that he was not allowed to compete for two

3b

job openings, including the NDD Office Director

position. IAF, Tab 5 at 30, 39. In addition, he

complained that the agency allowed his grievance to

be closed without requiring either the Director or, the

Deputy Director to accept or dispute facts in the

grievance alleging a prohibited personnel practice. Id.

The appellant alleged that this was contrary to the

agency's grievance process. Id. at 30. On September

28, 2015, OSC closed the appellant's file, and notified

him of his right to request corrective action from the

Board. Id at 39-40. The appellant filed a timely

appeal. IAF, Tab 1.

In an initial decision, the administrative judge

¶5

found that the appellant exhausted his claims before

OSC concerning personnel actions occurring on or

before February 5, 2015, the date he filed his OSC

complaint. IAF, Tab 9, Initial Decision (ID) at 3-4.

That period of time includes the agency's cancelling of

the vacancy for the NDD Office Director position in

October 2014. ID at 4. The administrative judge found

no indication that the appellant had exhausted his

remedies for, or that OSC had conducted an

investigation into, any alleged personnel actions that

occurred after February 5, 2015. Id. Regarding his

nonselection for NDD Office Director, the

administrative judge found that the appellant failed

to nonfrivolously allege that he made a protected

disclosure. ID at 4-7. Specifically, the administrative

judge found that the appellant's opinions on SABRS3

that he disclosed to management pertained to a policy

dispute, rather than to one of the forms of protected

disclosure set forth under 5 U.S.C. § 2302(b)(8). ID at

5. The administrative judge also rejected the

appellant's retaliation claim under 5 U.S.C. §

2302(b)(9)(D) because he failed to produce evidence

that the agency retaliated against him for refusing to

obey an order that would require him to violate the

National Defense Authorization Act (NDAA) of 2008,

Pub. L. No. 110-181, § 1065, 122 Stat. 3 (2008). ID at

5; IAF, Tab 5 at 8-9. Finally, the administrative judge

rejected the appellant's claim that he had disclosed a

substantial and specific danger to public health and

safety. ID at 6. The administrative judge dismissed

the appeal for lack of Board jurisdiction. ID at 6-7.

The appellant filed a petition for review. Petition for

Review (PFR) File, Tab 1.

ANALYSIS

To establish the Board's jurisdiction over an

¶6

appeal brought pursuant to the Whistleblower

Protection Enhancement Act (WPEA), an appellant

must exhaust his administrative remedies before

OSC and make nonfrivolous allegations3 of the

following: (1) he engaged in whistleblowing activity by

making a protected disclosure under 5 U.S.C. §

2302(b)(8), or engaged in other protected activity as

specified in 5 U.S.C. § 2302(b)(9); and (2) the

disclosure or activity was a contributing factor in the

agency's decision to take or fail to take a personnel

action as defined by 5 U.S.C. § 2302(a)(2)(A). 5 U.S.C.

§ § 1214(a)(3), 122L Yunus v. Department of Veterans

Nonfrivolous jurisdictional allegations supported by

affidavits or other evidence confer Board jurisdiction. Dick v.

Department of Veterans Affairs, 290 F.3d 1356, 1361 (Fed. Cir.

2002), overruled on other grounds, Garcia v. Department of

Homeland Security, 437 F.3d 1322 (Fed. Cir. 2006) (en bane);

Woodworth v. Department of the Navy, 105 M.S.P.R. 456, ¶ 14

(2007), aff'd, 329 F. App'x 281 (Fed. Cir. 2009).

Sb

Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). To

satisfy the exhaustion requirement of 5 U.S.C. §

1214(a)(3) in an IRA appeal, an appellant must

inform osc of the precise ground of his charge of

whistleblowing, giving OSC a sufficient basis to

pursue an investigation that might lead to corrective

action. Ward v. Merit Systems Protection Board, 981

F.2d 521, 526 (Fed. Cir. 1992).

¶7

The appellant argues that the administrative

judge erred in finding that OSC's investigation did

not cover personnel actions that occurred after

February 5, 2015. PFR File, Tab 1 at 10-12; ID at 4.

The appellant explains that OSC's close-out letter

suggests that it investigated matters up to September

28, 2015. Id. at 10. He further explains that, although

the administrative judge stated that his nonselection

took place on October 27, 2014, when the vacancy

announcement was canceled, ID at 2, a "second

nonselection" took place in late May 2015, when he

learned that another employee "was given an

unauthorized preference or advantage and preselected for the subsequent re-posted NDD Director

position." PFR File, Tab 1 at 11. The appellant argues

that osc investigated the May 2015 nonselection,

and that the agency's actions after February 5, 2015,

constitute further proof of retaliation. Id. at 11-12.

While there is no other proof in the record that

¶8

the appellant raised post-February 5, 2015 matters

with OSC, see, e.g., IAF, Tab 5 at 30-38, OSC's

September 28, 2015 close-out letter directly addresses

his allegations regarding the agency's ultimate

selection and his own nonselection for the NDD Office

Director position, IAF, Tab 1 at 23-24, Tab 5 at 39-40.

Clearly, these matters were exhausted. We thus

MM

correct the initial decision to the extent that the

administrative judge drew an erroneous conclusion

regarding the February 5, 2015 cut-off date.

¶9

Nevertheless, these matters do not change the

outcome of the appeal, as the appellant failed to make

a protected disclosure under 5 U.S.C. § 2302(b)(8). A

protected disclosure is defined as:

a formal or informal communication or

transmission, but does not include a

communication concerning policy decisions

that lawfully exercise discretionary authority

unless the employee or applicant providing the

disclosure reasonably believes that the

disclosure evidences—

any violation of any law, rule, or regulation

or

gross mismanagement, a gross waste of

funds, an abuse of authority, or a substantial

and specific danger to public health or safety.

5 U.S.C. § 2302(a)(2)(D) see 5 U.S.C. § 2302(b)(8). A

whistleblower need not prove that the matter he

disclosed actually established any of the conditions

described in section 2302(b)(8). Instead, he must

make a nonfrivolous allegation that the matter he

disclosed was one that a reasonable person in his

position would believe evidenced any of these

conditions. Apple white v. Equal Employment

Opportunity Commission, 94 M.S.P.R. 300, ¶ 12

(2003).

10 The test to determine if the appellant had a

¶

reasonable belief that his disclosure evidenced any of

7b

the types of wrongdoing identified in 5 U.S.C. §

2302(b)(8) is whether a "disinterested observer with

knowledge of the essential facts known to and readily

ascertainable by the employee [could] reasonably

conclude that the actions of the government

evidence[d]" such wrongdoing. M. (citing Lachance v.

White, 174 F.3d 1378, 1381 (Fed. cir. 1999)).

Determining whether an employee had a reasonable

belief that a law, rule, or regulation was violated

turns on the facts of a particular case. Drake v.

Agency for International Development, 543 F.3d

1377, 1381 (Fed. Cir. 2008). The Board, however,

requires an appellant to provide more than vague and

conclusory allegations of wrongdoing. McCorcle v.

Department of Agriculture, 98 M. S.P.R. 363, ¶ 21

(2005).

¶11 Here, the appellant argued that management's

decision to discontinue funding of SABRS3 was a

violation of law and created a substantial and specific

danger to public health or safety. JAF, Tab 1 at 4-5, 8,

11-12, Tab 5 at 8-9, 12-13. The appellant alleged that

he disclosed the need to continue funding SABRS3

because the program was necessary to comply with

section 1065 of the NDAA. IAF, Tab 1 at 4, 6, Tab 5 at

9. He reasserts this position on review. PFR File, Tab

1 at 6-9. Section 1065 of the NDAA states that the

Secretary of Defense shall maintain the "capability

for space-based nuclear detection at a level that meets

or exceeds the level of capability as of' January 28,

2008. Although the appellant has asserted that he

reasonably believed that the agency violated section

1065 of NDAA in deciding to cease implementing

SABRS3, he has not provided any evidence to support

his assertion. Under section 1065, the responsibility

FMO

to maintain the "capability for space-based nuclear

detection" falls to the Secretary of Defense. The

appellant and his colleagues at the Department of

Energy do not. bear that responsibility, even if they

have been tasked with and funded for supporting such

an activity. PFR File, Tab 1 at 7, 23-24. In addition,

as the administrative judge correctly found, the

appellant himself conceded that policy makers in the

Air Force, the United States Strategic Command

(STRATCOM), and the Department of State

determined whether SABRS3 was needed, and many,

including senior members of STRATCOM and the Air

Force, opposed the program. ID at 6; JAF, Tab 1,

Further, section 1065 does not limit the Secretary of

Defense to using any particular device or system to

maintain space-based nuclear detection capability. A

reasonable and disinterested person with knowledge

of the facts known to and readily ascertainable by the

appellant would not conclude that he was reporting a

violation of law.

¶12 Although a disclosure of a substantial and

specific danger to public health or safety is protected

under 5 U.S.C. § 2302(b)(8), revealing a negligible,

remote, or ill-defined peril that does not involve any

particular person, place, or thing is not protected. See

Johnston v. Merit Systems Protection Board, 518 F. 3d

905, 909-10 (Fed. Cir. 2008). In Chambers v.

Department of the Interior, 515 F.3d 1362 (Fed. Cir.

2008), the U.S. Court of Appeals for the Federal

Circuit identified a number of factors that the Board

might consider in determining whether disclosing a

danger to public health or safety is sufficiently

substantial and specific to warrant protection under

5 U.S.C. § 2302(b)(8):

we

One such factor is the likelihood of harm

resulting from the danger. If the disclosed

danger could only result in harm under

speculative or improbable conditions, the

disclosure should not enjoy protection. Another

important factor is when the alleged harm may

occur. A harm likely to occur in the immediate

or near future should identify a protected

disclosure much more than a harm likely to

manifest only in the distant future. Both of

these factors affect the specificity of the alleged

danger, while the nature of the harm—the

potential

consequences—affects

the

substantiality of the danger.4

Id. at 1369 (emphasis added); see also Chambers v.

Department of the Interior, 602 F.3d 1370, 1376 (Fed.

Cir. 2010); see, e.g., Miller v. Department of

Homeland Security, 111 M.S.P.R. 312, ¶ 19 (2009).

We do not question that a delayed response to a

nuclear detonation in space would imperil public

health and safety, but the appellant has not shown

that such an occurrence is more than a possibility

The appellant argues that Chambers is "outdated" and was

"legislatively rejected" by Congress with the passage of the

WPEA, which "reaffirmed its intent to protect all disclosures

that a whistleblower reasonably believes evidence" any of the

conditions set forth in 5 U.S.C. § 2302(b)(8). PFR File, Tab 1 at

18 (italics in original). Although the WPEA broadened the types

of disclosures that might be protected under the statute, the

Chambers factors go to the reasonableness of an employee's

belief that the matter he is disclosing represents a condition

described by the statute. Moreover, our reviewing court still cites

the Chambers factors. See, e.g., Yeh v. Merit Systems Protection

Board, 527 F. App'x 896, 901 (2013).

lOb

occurring at an undefined point in the future.5 Cf.,

e.g., Johnston, 518 F.3d at 910 (finding that the

appellant disclosed a specific and substantial danger

"not only because training exercises take place under

extreme weather conditions and routinely involve the

use of live fire and explosives, but also because a

series of accidents had occurred during such exercises

in the past").

113 The record shows that decisions pertaining to

continuing SABRS3 followed considerable

interagency consultation and debate in the context of

broader programmatic discussions. JAF, Tab 1 at 713, Tab 5 at 12-13. The administrative judge thus

found that the narrow exception for policy disputes

foreclosed the appellant from having made a

protected disclosure. ID at 5. The Board has found

that, when the alleged whistleblower is expressing

disagreement with fairly debatable policy decisions,

his disclosures do not fall within those defined as

protected under 5 U.S.C. § 2302(b)(8). Cf. OVonnell

v. Department of Agriculture, 120 M.S.P.R. 94, ¶ 14

(2013) (holding that the appellant's alleged protected

disclosure was "exactly the type of fairly debatable

policy dispute that does not constitute gross

mismanagement"), affd, 561 F. App'x 926 (Fed. Cir.

2014). The appellant asserts that the administrative

judge mischaracterized the nature of the debates over

discontinuing funding for SABRS3. PFR File, Tab 1

The appellant noted that he cannot disclose some

information in support of his argument because it is classified

for reasons of national security. IA-F, Tab 5 at 9. Such

information, however, would have been considered by the

policymakers who debated whether or not to continue funding

the program, and ultimately rejected it.

lib

-

-

at 6-9, 12-15. He further asserts that the fact that

discontinuing SABRS3 was debated on various

occasions does not mean that the decision not to fund

the program was debatable because its cancellation

would violate section 1065 of the NDAA. Id. at 15. The

appellant's argument is unavailing because, as

explained above, he failed to nonfrivolously allege

that the agency violated section 1065.

¶14 The appellant argues that the administrative

judge improperly cited O'Donnell because that case

pertains to gross mismanagement and not to a

substantial and specific danger to public health or

safety. Id. at 16-17. The appellant also argues that the

legislative history of the WPEA criticized a case upon

which O'Donnell relies, White v. Department of the

Air Force, 391 F.3d 1377, 1382 (Fed. Cir. 2004). PFR

File, Tab 1 at 16 (citing S. Rep. No. 112-155, at 1011.37

(2012)). In Webb v. Department of the Interior, 122

M.S.P.R. 248, ¶ 9 (2015), however, the Board clarified

the issues raised in the legislative history and

concluded that "if an employee has a reasonable belief

that the disclosed information evidences the kinds of

misconduct listed in section 2302(b)(8), rather than a

policy disagreement, [the disclosure] is protected."

Here, the appellant has failed to nonfrivolously allege

that his own belief that canceling the SABRS3

program posed a substantial and specific danger to

public health or safety was a reasonable one.

¶15 In the proceeding below, the appellant also

asserted that the agency retaliated against him for

refusing to obey an order that would require him to

violate the NDAA. IAF, Tab 1 at 4, Tab 5 at 9; see 5

U.S.C. § 2302(b)(9)(D) (an agency cannot "take or fail

to take, or threaten to take or fail to take, any

12b

personnel action against any employee or applicant

for employment. for refusing to obey an order that

would require the individual to violate a law"). The

administrative judge found that this claim failed

because the appellant did not produce any evidence of

such retaliation. ID at 5. On review, the appellant

asserts that the initial decision is erroneous in this

respect and cites comments that the Director made

regarding the decision to cancel or continue the

SABRS3 program. PFR File, Tab 1 at 27-28. These

comments, however, do not suggest any retaliatory

motive. The appellant has not substantiated his

allegation that the agency retaliated against him for

his opposing the discontinuation of the SABRS3

program.

.

.

116 The appellant additionally argues on review

that the administrative judge held him to an

erroneous jurisdictional standard when he stated that

" [n] onfrivolous jurisdictional allegations supported by

affidavits or other evidence confer Board jurisdiction."

Id. at 28; ID at 4-5. The appellant asserts that the

proper and more recent standard requires only that

he "plead allegations of fact that, if proven, could

show that he made a protected disclosure and that the

disclosure was a contributing factor in a personnel

action" and that "[amy doubt or ambiguity as to

whether [he] made nonfrivolous jurisdictional

allegations should be resolved in favor of finding

jurisdiction." PFR File, Tab 1 at 28. He further asserts

that the veracity of any allegations he made was

immaterial at this stage of the proceeding, and thus

any submission of proof would be unnecessary. Id. at

29. The standard to which the appellant objects,

however, is not the Board's jurisdictional standard,

13b

but rather, the Board's definition of a nonfrivolous

allegation, which has been codified in the Board's

regulations: "An allegation generally will be

considered nonfrivolous when, under oath or penalty

of perjury, an individual makes an allegation that: (1)

Is more than conclusory; (2) Is plausible on its face;

and (3) Is material to the legal issues in the appeal."

5 C.F.R. § 1201.4(s). The administrative judge did not

err.

¶17 Finally, the appellant asserts that he has new

and material evidence, namely information he

received in 2013 from a colleague who overheard the

Director telling the Deputy Director that he intended

"to find ways not to fund [SABRS3]." PFR File, Tab 1

at 29-31. When he filed his OSC complaint, he asserts,

he did not include this information because the

colleague told him at that time that she could not

remember certain details about the conversation she

was recounting. Id. at 30. She later remembered those

details and notified the appellant. Id. The appellant

argues that the information was thus unavailable to

him when he filed his OSC complaint, and he asks the

Board to consider it now. Id. at 30-31. Even if the

appellant had submitted this information to OSC for

consideration with his complaint, however, he has

offered no evidence in support of this newly raised

allegation. See 5 C.F.R. § 1201.4(s). Therefore, the

Board will not consider it.

¶18 Accordingly, we affirm the initial decision as

modified.

NOTICE TO THE APPELLANT REGARDING YOUR

FURTHER REVIEW RIGHTS

14b

The initial decision, as supplemented by this

Final Order, constitutes the Board's final decision in

this matter. 5 C.F.R. § 1201.113. You have the right

to request review of this final decision by the U.S.

Court of Appeals for the Federal Circuit.

The court must receive your request for review

no later than 60 calendar days after the date of this

order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.

27, 2012). If you choose to file, be very careful to file

on time. The court has held that normally it does not

have the authority to waive this statutory deadline

and that filings that do not comply with the deadline

must be dismissed. See Pinat v. Office of Personnel

Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you want to request review of the Board's

decision concerning your claims of prohibited

personnel practices under 5 U.S.C. § 2302(b)(8),

(b)(9)(0i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do

not want to challenge the Board's disposition of any

other claims of prohibited personnel practices, you

may request review of this final decision by the U.S.

Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. The court of

appeals must receive your petition for review within

60 days after the date of this order. See 5 U.S.C. §

7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose

to file, be very careful to file on time. You may choose

to request review of the Board's decision in the U.S.

Court of Appeals for the Federal Circuit or any other

court of appeals of competent jurisdiction, but not

both. Once you choose to seek review in one court of

appeals, you may be precluded from seeking review in

any other court.

15b

If you need further information about your

right to appeal this decision to court, you should refer

to the Federal law that gives you this right. It is found

in title 5 of the United States Code, section 7703 (5

U.S.C. § 7703) (as rev. eff. Dec. 27, 2012). You may

read this law as well as other sections of the United

Code,

at

our

website,

States

http://www.mspb.gov/appeals/uscode.htm. Additional

information about the U.S. Court of Appeals for the

Federal Circuit is available at the court's website,

www.cafc.uscourts.gov. Of particular relevance is the

court's "Guide for Pro Se Petitioners and Appellants,"

which is contained within the court's Rules of

Practice, and Forms 5, 6, and 11. Additional

information about other courts of appeals can be

found at their respective websites, which can be

accessed through the link below:

htti)://www.uscourts gov/Court Locator/Court Web sit

es.aspx.

.

If you are interested in securing pro bono

representation for an appeal to the U.S. Court of

Appeals for the Federal Circuit, you may visit our

website at http://www.mspb gov/probono for

information regarding pro bono representation for

Merit Systems Protection Board appellants before the

Federal Circuit. The Merit Systems Protection Board

neither endorses the services provided by any

attorney nor warrants that any attorney will accept

representation in a given case.

.

16b

FOR THE BOARD:

Jennifer Evening

Acting Clerk of the Board

Washington, D.C.

17b

Appendix C: Order on Petition for Rehearing en

Banc, Court of Appeals for the Federal Circuit,

January 19, 2018

NOTE: This disposition is nonprecedential.

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT

VAUGHN HOEFLIN STANDLEY,

Petitioner

V.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

DEPARTMENT OF ENERGY,

Intervenor

2017-1691

Petition for review of the Merit Systems

Protection Board in No. DC-1221-16-0168-W-1.

ON PETITION FOR REHEARING EN BANC

ic

Before PROST, Chief Judge, NEWMAN,

LAURIE, DYK, MOORE, O'MALLEY, REYNA,

WALLACH, TORANTO, CHEN, HUGHES, and

STOLL, Circuit Judges.

PER CURIAM.

J

Petitioner Vaughn Hoeflin Standley filed a

petition for rehearing en bane. The petition was first

heard as a petition for rehearing to the panel that

heard the appeal, and thereafter the petition for

rehearing en bane was referred to the circuit judges

who are in regular active service.

Upon consideration thereof,

IT IS ORDERED THAT:

The petition for panel rehearing is denied.

The petition for rehearing en bane is denied.

The mandate of the court will issue January 26,

2018.

FOR THE COURT

January 19, 2018

DATE

Is! Peter R. Marksteiner

Peter B. Marksteiner

Clerk of Court

2c