Petition for Writ of Certiorari — Vaughn Hoeflin Standley, Petitioner v. Department of Energy

FILED

m 0 2 2022

OFFICE OF THE CLERK

No. 21-

In the Supreme Court of the United States

VAUGHN HOEFLIN STANDLEY

Petitioner;

v.

DEPARTMENT OF ENERGY,

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Vaughn H. Standley

pro se,

14410 Sedona Drive

Gainesville, Virginia 20155

vaughnstandley@gmail.com

571-723-5196

Question Presented

Should not an agency’s Congressional budget

justifications be considered compelling evidence of

the agency’s belief?

1

Statement of Related Proceedings

This case arises from the following proceedings'

•

*

Standley v. Dep’t of Energy., No. DC-1221-200788-W-l (M.S.P.B. June 1, 2021).

Standley v. Dep’t of Energy, No. 2021-2149,

(Fed. Circ. February 16, 2021).

There are no other proceedings in state or federal

trial or appellate courts, or in this Court, directly

related to this case within the meaning of this Court’s

Rule 14.l(b)(iii).

u

Table of Contents

Question Presented.......................................................

l

Statement of Related Proceedings.............................

li

Table of Contents.......................................................... in

Table of Authorities...................................................... IV

Opinions Below.............................................................. 1

Jurisdiction.....................................................................

1

Statutes at Issue...........................................................

1

Statement of the Case..................................................

3

Argument.........................................................................

4

Conclusion....................................................................... 9

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

Circuit Opinion, February 16, 2022.......................... la

Appendix B- Merit System Protection Board Final

Order, June 1, 2021....................................................... lb

in

Table of Authorities

Cases

Montgomery v. Merit Systems Protection Board, 382

Fed. App’x 942, 947 (Fed. Cir. 2010)........................ 3

Statutes

§ 1065 of the National Defense Authorization Act of

2008 (Public Law 110-181 § 1065)........................... 3

28 U.S.C. § 1295(a)(9)..................................................... 3

28 U.S.C. 1254(i)............................................................ 1

5 U.S.C. § 2302(a)(2)(D)(i) 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.)......

..... 3

IV

Opinions Below

The Federal Circuit’s opinion is reported at

Standley v. Dep’t of Energy, No. 2021-2149, (Fed.

Circ. February 16, 2021) and is reproduced at App. la

- 14a. The opinion of the Merit Systems Protection

Board is reported at Standley v. Dep’t of Energy, No.

DC-1221-20-0788-W-1 (M.S.P.B. June 1, 2021) and is

reproduced at App. lb - 40b.

Jurisdiction

The judgment of the Court of Appeals for the

Federal Circuit for Docket # 2021-2149 was entered

on February 16, 2022. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1). It is timely filed

before 90 days after the Federal Circuit’s decision.

Statutes at Issue

5 U.S.C § 2302:

(a) (2) For the purpose of this section—

(D) “disclosure” means 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—

(i) any violation of any law, rule, or

regulation; or

1

(b) 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, rule, or

regulation, or

(9) take or fail to take, or threaten to take or

fail to take, any personnel action against

any employee or applicant for employment

because of—

(D) refusing to obey an order that would

require the individual to violate a law,

rule, or regulation

Section 1065, Public Law 110-18L

MAINTENANCE OF CAPABILITY FOR

SPACE-BASED NUCLEAR DETECTION.

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 the date of the enactment of

this Act.

2

Statement of the Case

I am an employee of the U.S. National Nuclear

Security Administration (NNSA), which is part of the

U.S. Department of Energy (DOE). I allege that I

made protected disclosures about the need to field the

third Space and Atmospheric [Nuclear] Burst

Reporting System (SABRS‘3). SABRS-3 is a suite of

instruments fielded on Department of Defense (DOD)

satellites in support of treaty monitoring and Nuclear

Command, Control, and Communications (NC3).

Production of SABRS-3 is managed by NNSA’s Office

of Defense Nuclear Nonproliferation (DNN) Research

and Development (R&D). Edward Watkins is the

current Assistant Deputy Administrators (ADA) of

DNN R&D, preceded by Rhys Williams, who left the

NNSA in May 2016.

I claim that my disclosures are protected under 5

U.S.C § 2302(a)(2)(i), § 2302(b)(8)(A)(i), and §

2302(b)(9)(D) of the WPEA because the DOE

documented its perception that it is required to

produce nuclear detonation detection instruments to

comply with Public Law 110-181, § 1065. Protection

for such “perceived as” whistleblowers was

established in Montgomery v. Merit Systems

Protection Board, 382 Fed. App’x 942, 947 (Fed. Cir.

2010).

Pursuant to 28 U.S.C. § 1295(a)(9) (2012), I

appealed to the U.S. Court of Appeals for the Federal

Circuit (“Federal Circuit”) a final order of the Merit

U.S. Merit Systems Protection Board (MSPB) denying

requested relief as a part of an individual right of

action (IRA) appeal. See Standley v. Dep’t ofEnergy,

No. DC-1221-20-0788-W“1 (M.S.P.B. June 1, 2021).

3

Argument

Americans have a right to know and trust what

the DOE believes. The only way they really can is by

being able to trust the department’s written words in

its official documents, like DOE’s budget requests, or

its reports to Congress about how to keep nuclear

weapons safe and reliable. And yet, the Federal

Circuit seems to think nothing of sacrificing this trust

to get two DOE executives off the hook for retaliation.

Its finding that DOE’s Congressional budget

justifications do not necessarily convey DOE’s belief

calls into question the integrity of DOE’s written

communications. It signals that neither Congress nor

the public can rely on what the DOE says in them,

about NC3 systems like SABRS-3, the safety and

reliability of nuclear weapons, or anything else.

The Federal Circuit claims to have considered my

petition “in the best light the facts and law allow and

in considerable detail.” (App. 13a) However, a cursory

review of the facts shows this to be false. The Federal

Circuit bent over backwards to rule in favor of the

DOE, going so far as to falsify an MSPB finding. The

incongruity and recklessness of not holding DOE to

its beliefs documented in Congressional budget

justifications is a sign of bias against whistleblowers.

This bias is also plainly evident in the statistics of the

appeals process and in the Federal Circuit’s

extracurricular remarks. Unless this court remedies

the decision, severe and long-lasting harm will be

done. The barrier for WPEA appellants to have their

disclosures protected will be too great. Executives can

too easily retaliate against whistleblowers and then

dissemble to evade accountability.

4

Between 2013 and 2021, seven of DOE’s

Congressional budget requests state the department’s

belief that it is required by law to produce suites of

nuclear

detonation

detection

instruments.

Referencing a requested increase of $25,650,000 for

Nuclear Detonation

Detection,

DOE’s

2013

Congressional budget request states, “The increase

permits production of satellite sensors for nuclear

detonation detection at the rate needed to sustain

replenishment of current capability as required. This

sustains the capability to monitor nuclear threats to

the U.S. such as surface and above - ground nuclear

detonations as required by Public Law 110 - 181; Sec

1065.” (M.S.P.B. No. DC-1221-20-0788-W-1, Tab-32:

Appellant's Close ofRecord Submission, p. 26). DOE’s

FY 2014 Congressional Budget Request states that

the Nuclear Detonation Detection budget increase

“reflects NNSA’s assumption of sensor - satellite

integration costs that the Department of Defense

formerly paid. These sensor payloads provide the

capability to monitor nuclear threats to the U.S. such

as surface and above - ground nuclear detonations as

required by Public Law 110 - 181! Sec 1065” (//>.)

DOE’s FY 2015 Congressional budget request states,

“DNN will contribute to the nation’s space based

global nuclear detonation detection capability per

Public Law 110 - 181; Sec 1065.” (lb. 26 - 27). DOE’s

FY 2016 Congressional Budget request states, “DNN

will also contribute to the nation's space based global

nuclear detonation detection capability as required by

law” (lb. 27). DOE’s FY2019, FY2020, and FY2021

Congressional budget requests all refer to “producing

the nation's space - based global nuclear detonation

detection capability as required by law.” (Ib.)

5

The seven Congressional budget justifications

quoted in the preceding paragraph mean exactly what

they say and, like all others, involved a lot of formal

review before appearing in DOE’s budget requests,

with the intent that they accurately represent the

department’s position. In fact, DOE policy required

that these statements were reviewed and approved by

Williams and Watkins. {Ib. 25).

The MSPB acknowledged that DOE’s yearly

budget requests “repeatedly reference Section §1065

as the justification for its request for funding the

SABRS project” (App. 19b) And yet, inexplicably, the

MSPB dismissed this evidence, arguing that a

“[cjitation to a law as support for a budget item does

not equate to that law requiring the program’s

existence” (App. 19b) Although this finding

acknowledges the simple fact that words in an

executive branch document carry no legal authority,

it does not address DOE’s belief about §1065 in any

way, shape, or form. Had it, words like “belief’ or

“perception” would be included, and there would be

some sort of accompanying explanation as to why the

budget justifications do not represent DOE’s belief.

But the words and explanations are both missing, so

it has nothing to do with DOE’s beliefs.

The Federal Circuit falsified this MSPB finding by

making it specifically about DOE’s belief. It did so by

adding the word “belief’ to its recap of the conclusion“as the Board explained, the statutory references in

the budgetary requests did not necessarily equate to

a belief that the agency was bound by that statute.”

(App. 9a) The Federal Circuit paraphrases this MSPB

finding, instead of quoting it, so that the word “belief’

can be added. It appears, therefore, that the judges

6

j

knew the change was necessary in order to convey the

meaning required. This one-word change is what the

Federal Circuit then uses to underwrite its false claim

that the MSPB accounted for the beliefs documented

in the budget requests. It then shamelessly washed

its hands of the matter, proclaiming that it is not able

to disturb the Board’s finding because the Board had

already

weighed

the

Congressional

budget

statements against other “substantial evidence.” (lb.)

The Federal Circuit opinion is 3,364 words (App.

A). The MSPB’s Initial Decision is 10,613 (App. B).

But each commit just one sentence to tossing out the

evidence associated with the seven Congressional

budget justifications. Altogether, zero reasons are

given for why the Congressional justifications about §

1065 do not represent DOE’s belief. Negligence is the

only explanation. But the degree of negligence points

to bias. Indeed, statistics of the appeals process

confirms the presence of bias favoring the

government. Of the 4,879 individuals who filed an

MSPB appeal in 2021, only 139 were granted relief.1

That’s less than 3%. However, 4,879 is just a tiny

fraction of the millions of federal workers who can file.

It cannot be that there is so little fraud, waste, abuse,

or corruption. Or, that employees are wrong so often.

The reason for these low numbers is that employees

are heavily deterred from appealing. Clearly, they do

not believe that they will be treated fairly if they file

a claim, and MSPB statistics indicate that they are

correct to believe so. Alas, the MSPB and Federal

Circuit seem blithely unaware of their bias.

1 MSPB, Annual Report for FY2021, February 18, 2022, pp.

10-12.

7

In 2019, the MSPB ordered the DOE to rectify my

2015 and 2016 performance ratings, finding that

Williams had “engaged in communications and

generated documents so indicative of retaliatory

animus they simply cannot be overcome by later

explanations.” See Standleyv. Department ofEnergy,

MSPB Docket No. DC-1221-18'0284-W-1 (November

21, 2018) (Initial Decision) at 48. Even though I

prevailed, one can see that the judge felt pressure to

explain away Williams’ retaliatory animus. In the

instant case, however, the MSPB and Federal Circuit

explain away Williams’ animus with one out-ofcontext “we hold no requirements” (App. 5a) e-mail.

Bias in this case is also found in the Federal

Circuit’s extracurricular remarks. The judges finish

by snarking “that the record shows conclusively that

Dr. Standley has had more than his day in court.”

(App. 14a) But having followed the WPEA appeals

process, I could not have gotten “more” than is due

me. We should all be surprised and disappointed that

officers of the court would include such a snide

remark. It is beneath the institution and casts doubt

on the seriousness of the opinion. In truth, the remark

betrays a contempt for pesky pro se WPEA appellants

who dare pursue justice against overwhelming odds.

The decision sets an awful precedent, further

constraining the already narrow and hyper technical

criteria for establishing if an appellant’s disclosures

are protected. Because DOE’s statements to Congress

about § 1065 could not be clearer, the court’s decision

essentially tells federal employees that under no

circumstances can they be “perceived as” a

whistleblower based on the beliefs expressed by an

agency in its statements to Congress.

8

The decision also makes it easier for dastardly

executives to retaliate against whistleblowers and

then dissemble to escape accountability. The record

shows that Williams and Watkins opposed SABRS'3

because they wanted to apply its funds to unrelated

work. I refused to cancel the SABRS-3 program to

release these funds because Williams would not give

me a direct order to do so. Frustrated by my refusal,

he asked the National Security Council to cancel it.

But it too refused, citing § 1065 as one of the reasons.

Incensed, he and Watkins pretended they were never

opposed to SABRS'3, set out to obstruct it, and

retaliated against me for not going along. Such illegal

conduct cannot be prosecuted unless agency

executives are held accountable to the beliefs that

they themselves help establish in the agency’s

statements to Congress.

An agency’s Congressional budget justifications

should be considered compelling evidence of the

agency’s belief, and no less so when deciding if a

disclosure is to be protected under the WPEA.

Conclusion

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Vaughn H. Standley,

pro se,

14410 Sedona Drive

Gainesville, Virginia 20155

vaughnstandley@gmail.com

(571) 723-5196

9

APPENDIX

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

Circuit Opinion, February 16, 2022

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT

VAUGHN HOEFLIN STANDLEY,

Petitioner

v.

DEPARTMENT OF ENERGY,

Respondent

2021-2149

Petition for review of the Merit Systems Protection

Board in No. DC-1221-20-0788-W-l.

Decided: February 16, 2022

VAUGHN HOEFLIN STANDLEY, Gainesville, VA,

pro se.

ALBERT S. IAROSSI, Commercial Litigation

Branch, Civil Division, United States Department of

Justice, Washington, DC, for respondent. Also

represented by BRIAN M. BOYNTON, MARTIN F.

HOCKEY, JR., FRANKLIN E. WHITE, JR.

Before MOORE, Chief Judge, PLAGER and

O’MALLEY, Circuit Judges.

la

Dr. Vaughn H. Standley1 at the time this case

arose was employed by the U.S. Department of

Energy (hereinafter “DOE”) in its National Nuclear

Security Administration. He petitions for review of

the Merit Systems Protection Board’s (“MSPB” or

“Board”) decision denying his request for corrective

action in an individual right of action appeal.2 We

have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

Petitioner alleges that the DOE retaliated against

him when he made repeated attempts to correct what

he considered a seriously erroneous agency decision

related to the mission of providing space-based

nuclear detection. Unsuccessful at the agency level

and convinced that the agency thereafter retaliated

against him for attempting to ensure our continued

nuclear detection capability as required by law, Dr.

Standley made repeated attempts to get the Merit

Systems Protection Board to correct the agency. His

attempts failed there as well.

As we shall explain, this case is his latest attempt

to get help—including from this court—in his cause.

Because the Board again ruled against him, we must

decide whether the Board properly denied corrective

action on the record presented.

BACKGROUND

By statute, the Secretary of Defense is responsible

for our space-based nuclear detection capability.

1 Some of the records in the case refer to Standley as “Mr.,”

some as “Dr.” There are references in the agency email

exchanges indicating that Standley was referred to by the

agency as “Dr. Standley”—we adopt that as his proper title.

2 Standley v. Dep’t of Energy, No. DC-1221-2O0788-W-1,

2021 WL 2290504 (M.S.P.B. June 1, 2021).

2a

Section 1065of the National Defense Authorization

Act of 2008 provides 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.”3

Although this statutory responsibility was

assigned to the Secretary of the Department of

Defense (“the Secretary”), the DOE traditionally has

assisted the Secretary in this mission. To that end,

the DOE provided a system of space-based sensors for

nuclear detection, referred to as the Space and

Atmospheric Burst Reporting System or SABRS. The

Secretary then included SABRS on its Air Force

satellites.

While

this

division

of

labor

sounds

straightforward in theory, apparently it has not been

straightforward in practice, particularly with respect

to funding. This is likely, in no small part, because,

while the Secretary bears legal responsibility under §

1065, the statute

does not prescribe any particular means or

technology by which space-based nuclear

detection capabilities must be maintained.

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.

Standley v. Merit Sys. Prot. Bd., 715 F. App’x 998,

1002 (Fed. Cir. 2017) (internal citation omitted).

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

3a

Thus, while the Secretary in the past has relied on

the DOE’s SABRS program to assist in carrying out

its mission, § 1065 does not require that the Secretary

do so. Similarly, nothing in the statute requires that

the DOE continue to provide its SABRS program to

the Secretary.

With this background, we turn to the particular

facts of this case. This requires a look at a complex of

government agency decisional levels, and serious

allegations by Dr. Standley spanning several years,

amidst a veritable alphabet soup of governmental

abbreviations.

At the time of the events at issue, Petitioner Dr.

Standley, who appears before us pro se, was a General

Engineer employed in the DOE’s National Nuclear

Security Administration (“NNSA”), Office of Defense

Nuclear Nonproliferation Research and Development

(“DNN”), Office of Nuclear Detonation Detection

(“NDD”).

The workplace hierarchy involved in the case, in

ascending order of rank, was: General Engineer Dr.

Vaughn Standley; NDD Director Tom Kiess; DNN

Associate Assistant Deputy Administrator Edward

Watkins; DNN Assistant Deputy Administrator Rhys

Williams; DNN Deputy Administrator Anne

Harrington; and NNSA Deputy Administrator

Madelyn Creedon.4 Prior to May 2015, the position of

Dr. Standley’s immediate superior, the NDD Director,

was vacant, so Dr. Standley reported directly to

4 Watkins replaced Williams as DNN Assistant Deputy

Administrator in July 2016. David LaGraffe replaced Watkins

as DNN Associate Assistant Deputy Administrator in April

2017.

4a

Watkins in his role as DNN Assistant Deputy

Administrator.

Dr. Standley worked on the third iteration of the

SABRS program—SABRS3. He contends that over

several years he sought to ensure that the program

was funded and supported, in no small part because

Dr. Standley believed this was legally necessary

under § 1065. He alleges that, in contrast, his

superiors attempted to block funding of and his work

on SABRS3, despite—according to Dr. Standley—also

believing that the DOE was legally responsible under

§ 1065. As noted, these allegations span several years,

and involve several layers of officialdom; we recount

the most salient facts below.5

On August 8, 2014, Dr. Standley emailed

Williams, Watkins, and Kiess, indicating that Dr.

Standley was studying how to include SABRS3 on an

existing Air Force satellite. Williams responded via

email:

We need to talk. I do not, repeat do not, support

NNSA being involved in any way, shape or form

with a free flier. We provide the payload.

Period. If DoD can’t get it’s [sic] act together to

support the existing requirement, it’s not ours

to fix. We hold no requirements. And SABRS3

hosting and data down link is a kluge. I don’t

want NNSA stuck paying for this for the next

20 years—and we will. I am deciding now

whether to stop SABRS3 funding and redirect.

I plan to provide a decision brief to NAl/2 in the

near future.

5 A more complete account is found in the record before the

Board.

5a

Appendix (“A”) 3. In response, Dr. Standley agreed

that it was a “total kluge,” and noted that “[e]ach and

every attempt by the community over the last 10

years to get them [the Air Force] to pay or accept

funds/direction” had failed. Id. He also stated:

“Dealing with that has been adhoc/ ugly. The whole

hosted-payload business is messy. Personally, I feel

well equipped to deal with it but someone (you) will

decide how much mess we tolerate.” Id.

Considerably later, during the week of March 26,

2015, Dr. Standley participated in a meeting with Air

Force representatives to finalize a joint brief for the

House Armed Services Committee (“HASC”). Dr.

Standley requested that the brief include a statement

that § 1065 required U.S. Nuclear Detection System

(“USNDS”) capability to be maintained in the future.

An Air Force representative emailed Williams and

Creedon, informing them of Dr. Standley’s request,

which was approved. Williams forwarded the email to

Dr. Standley and others with the note “FYSA,” which

presumably meant “for your situation awareness.”

Later still, in or around July 2015, Williams

agreed to a Department of Defense (“DOD”) request

to suspend executive-level decision meetings of the

USNDS Board of Directors, pending further guidance

from the National Security Council on how to

structure the USNDS. On July 29, 2015, Dr. Standley

emailed Williams, asking him to reconsider his

decision because it was necessary for the Board to

“press a DOD decision to follow-through with funding

the necessary ground infrastructure to support

SABRS in the long term.” A. 5. Williams thanked Dr.

Standley for his input and stated he would consider

it. Nevertheless, on September 18, 2015, Williams

6a

instructed Dr. Standley to cease funding ground

segment support related to the USNDS program.

Shortly thereafter, on September 23, 2015, Dr.

Standley sent an email entitled “Obstruction of Public

law 110-118, NDAA 2008, Maintenance of Spacebased Nuclear Detonation Detection System” to Rose

Gottemoeller, Under Secretary of State for Arms

Control and International Security Affairs. Dr.

Standley copied the email to the HASC Chairman, to

Harrington,

to

Department

of

Defense

representatives, and to the U.S. Office of Special

Counsel. In the email, Dr. Standley claimed that

Williams was obstructing compliance with § 1065.

Harrington forwarded that email to Williams,

asking him to “fill in whatever background you have

on this.” A. 7. Williams responded:

Dr. Standley raises, what he believes, are

serious issues. That said, in no way has DNN

R&D or myself obstructed implementation of

US Law. In fact, we (NNSA) has [sic] increased

funding for this important area and have

driven the interagency to keep this a priority—

to meet US law.

A. 7.

Following several earlier unsuccessful attempts to

getthe DOE position changed, on August 6, 2020, Dr.

Standley filed the instant individual right of action

appeal with the Board. He alleged that the DOE and

its employees, Williams and Watkins, retaliated

against him for his efforts to change the DOE policy

by not selecting him for any of three DOE Director

positions posted in 2014, 2015, and 2017. Specifically,

he alleged that Williams and Watkins believed that

7a

the DOE was responsible under § 1065, and that Dr.

Standley was engaging in protected whistleblowing

when he opposed efforts to defund and cease work on

the SABRS3 program. Dr. Standley contends that

they subsequently retaliated against him for his

whistleblowing by not selecting him for any of the

three DOE Director positions.

The assigned MSPB administrative judge denied

corrective action, finding that Dr. Standley failed to

meet his burden of proving that the agency personnel

perceived him as a whistleblower. In the absence of a

petition for review at the MSPB, the decision became

final on July 6, 2021. Dr. Standley timely petitioned

for this court’s review.

DISCUSSION

We must affirm the Board’s decision unless it is

“(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 “means such relevant evidence

as a reasonable mind might accept as adequate to

support a conclusion.” Consol. Edison Co. v. Nat’l

Labor Reis. Bd., 305 U.S. 197, 229 (1938). “[T]he

standard is not what the court would decide in a de

novo appraisal, but whether the administrative

determination is supported by substantial evidence

on the record as a whole.” Parker v. U. S. Postal Serv.,

819 F.2d 1113, 1115 (Fed. Cir. 1987).

On appeal, Dr. Standley contends that the Board

failed to consider certain evidence indicating that the

DOE, Williams, and Watkins perceived Dr. Standley’s

8a

activities to be protected, and that the Board also

failed to consider certain evidence indicating that the

DOE acted fraudulently.

I

First, Dr. Standley argues that the Board failed to

consider certain “direct” evidence supporting his

position—namely, the September 2015 email from

Williams to Harrington and the DOE’s annual

congressional budgetary requests over several years,

which consistently referenced §1065 in requesting

funds.6

Dr. Standley contends that this evidence reflects

Williams’s, Watkins’s, and the DOE’s perceptions

that the DOE was required to continue the SABRS3

program to comply with § 1065. This is not an

unreasonable argument, but it is one that the Board

expressly considered and rejected in light of the

evidence. See A. 20 (discussing email), A. 14-15

(discussing yearly budgetary requests).

As the Board explained, the email from Williams

to Harrington demonstrated that Williams disagreed

with Dr. Standley’s views and instead believed that

the DOE was continuing to support an important area

of law, albeit one that was not the DOE’s sole

responsibility. In other words, as Williams stated in

his email, the issue was one of interagency concern.

Similarly, as the Board explained, the statutory

references in the budgetary requests did not

necessarily equate to a belief that the agency was

bound by that statute.

6 Although Dr. Standley contends that the Board failed to

consider this evidence, he admits that the Board considered the

budgetary requests. See Opening Br. at 6.

9a

A different fact-finder might have viewed the

email and budgetary requests as supporting Dr.

Standley’s position, but, given the record, because

substantial evidence supports the Board’s conclusion

we cannot reverse or vacate it. “[W]here two different,

inconsistent conclusions may reasonably be drawn

from the evidence in record, an agency’s decision to

favor one conclusion over the other is the epitome of a

decision that must be sustained upon review for

substantial evidence.” In re Jolley, 308 F.3d 1317,

1329 (Fed. Cir. 2002).

II

Second, Dr. Standley argues that the Board failed

to consider certain “indirect” evidence—for example,

Williams’s statement about “meeting] US law”; Dr.

Standley’s request to reference § 1065 in the March

2015 HASC briefing; and Dr. Standley’s September

2015 email. Dr. Standley contends that, given the

“direct” evidence mentioned above, this “indirect”

evidence supports his position. But again, the Board

expressly considered this evidence and simply

reached a different conclusion. See A. 19 (concerning

Williams’s statement about “meet[ing] US law”), A.

19- 20 (concerning the HASC briefing), A. 20-21

(concerning the September 2015 email).

As before, substantial evidence supports the

Board’s conclusion on each point. Williams’s

statement about meeting U.S. law was made in

conjunction with his express belief that it was an

interagency concern—not a matter solely for the

DOE. Dr. Standley’s HASC briefing request was not

only unopposed but honored, which made sense given

the Department of Defense’s involvement in the

briefing and ultimate legal responsibility under §

10a

1065. Similarly, Dr. Standley’s September 2015 email

certainly demonstrated his own belief that the DOE

was legally responsible under § 1065 via SABRS3, but

Williams’s followup response to Harrington indicated

a consistent belief that the DOE was not responsible

in that manner.

The evidence supports the agency’s position that

the SABRS3 program was part of the DOE’s mission

to assist the Secretary of Defense. Dr. Standley’s

suggested alternative conclusion is certainly possible,

but it does not detract from the substantial evidence

supporting the Board’s conclusion. As before, we

cannot reverse or vacate on this record given the

standard of review.

Ill

Third, Dr. Standley contends that the Board failed

to cite Watkins’s affidavit and therefore failed to

consider any of Watkins’s sworn statements. Dr.

Standley pinpoints Watkins’s affidavit statement

that “SABRS-3 hosting and gaps were the topic of on­

going undersecretary-level Interagency Policy

Committee (IPC) meetings.” Opening Br. At 14

(quoting A. 32). Dr. Standley believes this statement

demonstrates that Watkins and the DOE perceived

the SABRS3 program as necessary for § 1065

compliance.

The Board found that Dr. Standley “failed to

present preponderant evidence that Watkins

perceived him as a whistleblower with respect to the

allegations in this appeal.” A. 22. While the Board

could have viewed Watkins’s statement as supporting

Dr. Standley’s position, the Board also could have

viewed Watkins’s statement as it did—supporting the

11a

DOE’s position that SABRS3 was not just an issue for

the DOE, but instead had to be sorted out by the

Interagency Policy Committee, as Watkins expressly

indicated in his affidavit. See A. 32. Because the

Board’s conclusion was supported by substantial

evidence, we cannot disturb it.

In a similar vein, Dr. Standley faults the Board for

its statement that he “did not put forth particular

evidence and argument regarding Watkins’ alleged

perception of him as a whistleblower with respect to

any of the alleged whistleblowing in this appeal.”

Opening Br. at 7 (quoting A. 22). Dr. Standley asserts

that, before the Board, he highlighted Watkins’s

statement that Dr. Standley’s allegedly protected

activities were “widely known.” Opening Br. at 7.

But Watkins never made this statement, as Dr.

Standley admits on the very same page. See id.

Watkins referred to the “subject of potential gaps”—

not Dr. Standley’s actions— as “widely known.” A. 32.

That such gaps existed and were widely known does

nothing to prove Dr. Standley’s contention as to

Watkins’s perception of Dr. Standley’s actions.

Indeed, Watkins had no knowledge of the majority of

Dr. Standley’s actions. See A. 32-33. Further, in his

submissions to the Board, Dr. Standley admitted that

Watkins’s affidavit was largely silent on these points,

but Dr. Standley nevertheless contended that

Watkins purposely obfuscated the truth.

While Dr. Standley’s interpretation of Watkins’

statements is possible, the Board’s contrary

conclusion is again supported by substantial

evidence. Substantial evidence supports the finding

that Watkins’s consistent belief was that the coverage

gaps were an interagency issue—not one solely for the

12a

DOE. Again, we cannot reverse or vacate on this

record given the standard of review.

IV

Fourth and finally, Dr. Standley contends that the

Board failed to consider facts indicating that the DOE

acted fraudulently by misrepresenting its stance on §

1065 to avoid jurisdiction while simultaneously

seeking funding from Congress based on § 1065. Dr.

Standley highlights the DOE’s annual congressional

budgetary requests referencing § 1065, despite the

agency’s litigation position before the Board and this

court that the DOE bore no legal responsibility under

§ 1065.

Again, the Board considered this argument and

rejected it, finding that the mere mention of the

statute in a budgetary request was insufficient to

support Dr. Standley’s claims. Given the record and

Dr. Standley’s arguments on appeal, we agree. That

the DOE referenced the statute when seeking funds

to support the Secretary of Defense’s legal obligation

does not necessarily mean that the DOE viewed that

obligation as its own. Belatedly, since there were no

findings of fraud, we cannot endorse Dr. Standley’s

argument that the Board should have viewed

Williams in a less favorable light. As before, the

Board’s decision was supported by substantial

evidence.

SUMMARY

Given the critical importance of the military

program at issue, as well as Dr. Standley’s wellintentioned beliefs about the mission, and his pro se

status throughout this extended series of appeals, we

have considered his petition in the best light the facts

13a

and law allow and in considerable detail. This is the

third decision by this court (and the fourth review

before the MSPB) arising from the government’s

decision regarding funding and continuation of DOE’s

SABRS program.

In the two previous cases before this court, decided

by nonprecedential decisions, Dr. Standley presented

alternative theories for the reasons he should have

been treated as a whistleblower. In this, the third

theory, he tried to prove that the deciding officials

believed all along that he was right, but ruled against

him nevertheless. As in the previous cases, his effort

to convert a government policy decision with which he

disagreed into the appearance of an intended

wrongful use of government property was unavailing.

The Board’s decision was supported by substantial

evidence and was not arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law,

or obtained without procedures required by law, rule,

or regulation having been followed. We have

considered Dr. Standley’s remaining arguments and

find them unpersuasive. In sum, we believe that the

record shows conclusively that Dr. Standley has had

more than his day in court.

CONCLUSION

For the foregoing reasons, we affirm the Board’s

decision.

AFFIRMED

COSTS

No costs.

14a

Appendix B: Merit System Protection Board Final

Order, June 1, 2021

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WASHINGTON REGIONAL OFFICE

VAUGHN HOEFLIN STANDLEY,

Appellant,

v.

DEPARTMENT OF ENERGY,

Agency.

DOCKET NUMBER

DC-1221-20-0788-W-1

DATE: June 1, 2021

Vaughn Hoeflin Standley, Gainesville, Virginia, pro

se.

Saul Ramos, Albuquerque, New Mexico, for the

agency.

BEFORE

Monique Binswanger

Administrative Judge

INITIAL DECISION

On August 6, 2020, the appellant timely filed the

instant Individual Right of Action (IRA) appeal

alleging the agency retaliated against him for

perceived whistleblowing disclosures and activity.

See Appeal File (AF), Tab 1. The Board has

lb

jurisdiction over this appeal pursuant to 5 U.S.C. §

1221(a) and 5 C.F.R. § 1209.2; see also AF, Tab 14.

The appellant did not request a hearing; accordingly,

this decision is based on the written record.

For the following reasons, the appellant’s request

for corrective action is DENIED.

ANALYSIS AND FINDINGS

Background

The appellant is a General Engineer with the

agency’s National Nuclear Security Administration

(NNSA), Office of Defense Nuclear Nonproliferation

Research and Development (DNN R&D), Office of

Nuclear Detonation Detection (NDD). Also within the

DNN R&D office was the Office of Proliferation

Detection (PD). Both NDD and PD were overseen by

two GS-15 Directors, both of whom report to the DNN

Assistant Deputy Administrator (ADA). The ADA

then reports directly to the DNN Deputy

Administrator (DA), who reports to the NNSA DA. At

all times relevant to this appeal, Madelyn Creedon

served as the NNSA DA and Anne Harrington served

as the DNN DA. Rhys Williams served as the DNN

ADA from 2012 to May 2016. Edward Watkins served

as Williams’ Deputy (Associate ADA) during this time

and was reassigned to the ADA position in July 2016

following Williams’ departure. David LaGraffe,

previously the PD Director, was promoted to the

Associate ADA position in April 2017. During all

times relevant to this appeal, the appellant was a GS15 General Engineer in NDD and reported directly to

the NDD Director. However, in or around 2014, the

NDD Director position was vacancy and the appellant

2b

reported directly to Watkins, the Associate ADA at

that time. Tom Kiess was selected as the NDD

Director in or around May 2015.

The appellant managed the agency’s Space-based

Nuclear Detonation Detection (SNDD) program. As

relevant to this appeal, Section 1065 of Public Law

110-181 requires the Secretary of Defense to maintain

a particular level of capability for space-based nuclear

detonation detection. Pub. L. No. 110-181, § 1065. The

Department of Energy (DOE), through the SNDD and

in partnership with Los Alamos National Laboratory

(LANL), produced the nuclear detonation detection

sensors, known as the Space and Atmospheric Burst

Reporting System (SABRS) that the Department of

Defense (DOD) included in its satellites in

satisfaction of Section 1065. During the events at

issue in this appeal, the agency was working with

LANL to produce the third iteration, SABRS’3, for

inclusion in a DOD satellite.

On July 31, 2014, during a Program Management

Review meeting, the appellant and LANL briefed

Williams and Watkins on fielding SABRS‘3 on a U.S.

Air Force (USAF) Space Test Program (STP) aircraft

(SAT‘6) “to prevent a performance coverage cap.” AF,

Tab 32 at 15. This briefing addressed the concern that

the USAF STP would need to obtain a satellite that

would serve as the host for SABRS-3 sensors. Id. at

32. On August 8, 2014, the appellant emailed

Williams, Watkins, and Kiess the following message

regarding that possibility:

FYI, in partnership with STP, we stopped

‘dispositioning’ of Boeing satellite and made it

available as possible host of SABRS3. Was

3b

short turnaround since previous owner insisted

it be off their books within a month. Integration

study begins now.

AF, Tab 33 at 41. Immediately thereafter, Williams

respondedWe need to talk. I do not, repeat do not, support

NNSA being involved in anyway, shape or form

with a free flier. We provide the payload.

Period. If DoD can’t get it’s act together to

support the existing requirements, it’s not ours

to fix. We hold no requirements. And SABRS 3

hosting and data down link is a kluge. I don’t

want NNSA stuck paying for this for the next

20 years ■ and we will. I am deciding now

whether to stop SABRS 3 funding and redirect.

I plan to provide a decision brief to NA1/2 in the

near future.

Id. The appellant respondedUnderstood. We will stop when you decide.

I agree, it is a total kluge but it is the only way

I can see to get it over the west. GEO has been

a kluge since someone at AFSPC decided years

ago that they didn’t want it on SBIRS. Each and

every attempt by the community over the last

10 years to get them to pay or accept

funds/direction for GEO has failed. Dealing

with that has been ad-hoc/ugly.

The whole hosted-payload business is messy.

Personally, I feel well equipped to deal with it

but someone (you) will decide how much mess

we tolerate.

4b

Id. at 40*41.

Williams did not stop the program or redirect

funding at that time. On December 9, 2014, Williams

issued a memorandum for the record entitled “New

Program Management Requirements for Space-Based

Nuclear Detonation Detection (SNDD) Program.” AF,

Tab 33 at 65. Therein, Williams detailed measures

DNN R&D would undertake to obtain assurances

that the SNDD program was efficient and successful.

Id. Accordingly, the appellant continued his work on

SABRS.

During the week of March 26, 2015, the appellant

participated in a meeting with USAF representatives

to finalize a joint brief requested by the House Armed

Services Committee (HASC) on U.S. Nuclear

Detection System (USNDS) capability. During that

process, the appellant requested the brief include a

statement that PL 110-181 (Section 1065) requires

USNDS capability to be maintained in the future. AF,

Tab 1 at 64. The statement was included in the brief.

Id. On March 26, 2015, USAF representative

informed Creedon of the appellant’s requested

changes and that they were accepted, and requested

her concurrence on the brief so it could be delivered to

the HASC. AF, Tab 1 at 64.

Williams was copied on the email. Id. That same

day, Williams forwarded that email to the appellant,

“FYSA,” copying Harrington, Watkins, Lagraffe, and

other agency and LANL employees.1 Id. He also

commented in the email- “My sense is [Creedon] may

1 FYSA is commonly understood to mean to “for your

situational awareness.”

5b

want to hold until the IPC [Interagency Policy

Committee meeting] - now scheduled for [April] 8th.”

Id

On April 8, 2015, the IPC met to discuss the future

of the SABRS program. The following day, the

appellant emailed a large group of individuals

involved in the SABRS program to notify them that

the IPC stated there would be no SABRS coverage

gaps. AF, Tab 34 at 21. He states the IPC further

confirmed DOD’s “responsibility for the ground

system.” Id. He concludes, therefore, that the team

would continue to work with USAF STP on fielding

the satellite for SABRS-3 and an additional

experiment, referred to as “SENSER,” to be included.

Id. On April 10, 2015, Williams emailed the appellant

and credited him for achieving the “positive outcome”

of the IPC meeting, specifically stabilization of the

NNSA program. AF, Tab 1 at 89. Williams relayed his

concern that LANL may want to focus on the “fun

science” of SENSER rather than the “mundane

engineering and integration” of SABRS-3. Id. at 8990. He stated, however, that the agency “must do”

SABRS-3 and informed the appellant that all funding

and focus must be prioritized toward that goal, at the

expense of SENSER, if necessary. Id. at 89-90.

In or around July 2015, Williams agreed to a DOD

request to suspend executive-level decision meetings

of the USNDS, including the interagency USNDS

Board of Directors (BOD), pending further guidance

from the National Security Council (NSC) on how to

structure the USNDS. AF, Tab 1 at 67. On July 29,

2015, the appellant emailed Williams and requested

he reconsider his decision. AF, Tab 34 at 24; AF, Tab

1 at 67. He stated a BOD was necessary in order to

6b

“press a DOD decision to follow-through with funding

the necessary ground infrastructure to support

SABRS in the long-term.” AF, Tab 34 at 24. He stated

DOD’s internal debate on funding could lead to delays

that have “potential cost impacts to the NNSA and

STP.” Id. He concluded a BOD would “hopefully

develop much needed cross-agency leadership within

the USNDS program.” Id. Williams thanked the

appellant for his input and stated he would consider

it. Id. On September 18, 2015, Williams instructed the

appellant to cease funding ground segment support

related to the USNDS program. AF, Tab 34 at 25.

In response to these actions, on September 23,

2015, the appellant sent an email to Rose

Gottemoeller, Under Secretary of State for Arms

Control and International Security Affairs, entitled

“Obstruction of Public law 110-118, NDAA 2008,

Maintenance of Space-based Nuclear Detonation

Detection System.” AF, Tab 1 at 65-68. The appellant

copied

Harrington,

Chairman

Mac

HASC

Thornberry, the Office of Special Counsel, and DOD

representatives. Id. At 68. Therein, the appellant

states that Williams is “obstructing compliance with

Section 1065 of Public Law 110-118.” Id. As support

for his statement, he references Williams’ July 2014

email to him and states Williams pressured him to

stop working on SABRS-3, though he acknowledges

Williams did not direct him to halt work. Id. at 66.

The appellant further alleged that Williams verbally

recommended to NSC staff that they terminate

SABRS-3, despite recognizing that doing so “would

likely mean the end of all future SABRS and thus a

degradation in space based nuclear detection

capabilities — a clear violation of the public law.” Id.

7b

at 66. The appellant stated that Williams’

recommendation was rejected and the IPC ordered

continued work on SABRS'3 and subsequent systems.

Id.

The appellant stated that Williams threatened to

cancel SABRS-3 if the DOD “did not follow through on

its responsibility to field the ground segment.” Id. at

67. He further stated Williams ordered him to stop

funding on all groundside integration activity for

SABRS because Williams believed DOD was

responsible for ground-side integration work and

expending DOE funds would violate appropriations.

Id. Finally, the appellant took issue with Williams’

agreement to a DOD request to suspend executivelevel decision meetings of the BOD. He stated this

decision would “seem innocuous,” except that he

believes DOD was attempting “to frustrate those

seeking to comply with Congress’ direction to

continue the SABRS program.” Id. at 67. He alleged

that suspension of executive-level leadership

meetings “has allowed the DOD to abrogate

responsibility for the SABRS ground segment” and

that this will inevitably lead to a halt in production of

SABRS'3 and cancellation of the entire SABRS

program. Id. at 68. He concluded that Williams “is

both actively and passively hindering execution” of

the program by his actions and omissions in this

regard./d.

In response to the appellant’s email, Harrington

forwarded the message to Williams and others, and

asked that Williams “fill in whatever background you

have on this.” AF, Tab 34 at 26. Williams responds-

8b

Absolutely. Dr. Standley raises, what he

believes, are serious issues. That said, in no

way has DNN R&D or myself obstructed

implementation of US Law. In fact, we (NNSA)

has increased funding for this important area

and have driven the interagency to keep this a

priority - to meet US law.

Id. at 26. In November 2015, Kiess, wrote in his Fiscal

Year 2015 performance evaluationEven though he disagrees with the activities of

some organizations involved in the USNDS, his

strong disagreements with some individuals

are (perhaps too) well known in the community,

which could impact efforts to build rapport and

foster closer working relationships.

The Sept 23 disclosure was done in a way that

may have been counterproductive.

AF, Tab 34 at 30. In October 2016, the appellant was

detailed to the National Defense University (NDU)

College of International Security Affairs and

remained on detail with the NDU December 2020. In

late-October 2016, DNN R&D hired Craig Sloan to

manage the office’s LYNM program.

In May 2017, the agency announced a vacancy for

the PD Office Director Position. The appellant applied

for the position and was interviewed, along with six

other applicants. Three applicants, including Sloan,

were given second interviews. The appellant was not

amongst these applicants. In August 2017, Sloan was

selected for the position.

9b

Nonselection actions

The appellant alleges Williams and/or Watkins

retaliated against him for perceived whistleblowing

activities when he was nonselected on the following

three occasions for the NDD and PD Office Director

positions. The parties have stipulated to the basic

timeline facts regarding these selections. AF, Tab 25.

14-012 7-GOV

On September 19, 2014, the agency advertised the

NDD Director position and the appellant timely

applied. Six candidates, including the appellant, were

certified as eligible for the position. On October 28,

2014, Watkins cancelled the vacancy announcement,

citing his dissatisfaction with the candidate pool and

stating his intention to reannouncement the position

with a modified job analysis to “widen the net.” AF,

Tab 16 at 29.

15-0086-GQV

On March 6, 2015, the NDD Director position was

readvertised and the appellant again timely applied.

Ten applicants were certified as eligible for the

position. Watkins served as the recommending official

and Williams served as the selection official. Watkins

formed an interview panel of himself and three other

managers. The appellant received a first interview

with the hiring panel but was not one of the two

candidates selected for a second interview with

Williams. In or around May 2015, Tom Kiess was

selected for the NDD Director position.

10b

17-0124-GOV

On May 8, 2017, the agency announced a vacancy

for the PD OfficeDirector and the appellant timely

applied for the position. 17 applicants were certified

as eligible for the position. LaGraffe and four other

managers comprised the hiring panel and Watkins

served as the selecting official. The appellant received

a first interview with the hiring panel but was not one

of the three candidates selected for a second interview

with Watkins. In or around July 2017, Craig Sloan

was selected for the PD Director position.

Procedural History

The appellant has had several prior IRA appeals

before the Board that involve, inter alia, the

communications he now alleges are the root cause of

Williams’ and Watkins’ perception of him as a

whistleblower. A brief discussion of those prior

appeals and the outcomes thereof is therefore prudent

to this discussion.

DC-1221 -16-0168- W-l

On November 26, 2015, the appellant filed an IRA

appeal alleging the agency retaliated against him for

whistleblowing, which he alleged included his July

31, 2014 briefing to Williams regarding fielding of

SABRS‘3 on the USAF STP satellite, and his response

to Williams’ August 8, 2014 email regarding possible

halting of SABRS-3 funding. See Standley v.

Department of Energy, MSPB Docket No. DC'122116-0168‘W-l (January 13, 2016) (Initial Decision).

The appellant alleged that, because of his protected

disclosures and activity, in October 2014 the agency

nonselected him for the NDD Director position and

lib

canceled the vacancy. Id. On January 13, 2016, MSPB

Administrative Judge Andrew Dunnaville issued an

Initial Decision dismissing the appeal for lack of

jurisdiction. Id. AJ Dunnaville found the appellant’s

alleged disclosures and activity were not protected

under Sections (b)(8) or (b)(9), as the appellant’s

statements regarded a policy debate, did not involve

a “substantial and specific danger to public health

and safety,” and, with respect to the August 2014

email, was not a refusal to obey an order that would

require him to violate the law. Id.

The appellant filed a petition for review (PFR) of

the AJ’s decision to the Board and, on January 3,

2017, the Board denied the appellant’s PFR. Standley

v. Department ofEnergy, MSPB Docket No. DC'122116-0168-W-l, 2017 WL 56181 (January 3, 2017)

(Final Order). The Board affirmed AJ Dunnaville’s

finding that the appellant failed to make a protected

disclosure under Section (b)(8). Id. In so holding, the

Board stated that the responsibility to maintain

space-based nuclear detection “falls to the Secretary

of Defense” rather than to the Department of Energy

or the appellant’s colleagues therein. Id. at H 11. The

Board noted that members of the U.S Strategic

Command and the USAF opposed the SABRS3

program and that SABRS was not the only way the

Secretary of Defense could satisfy its obligation under

Section 1065. Id. For these reasons, the Board held

the appellant did not have a reasonable belief that he

was disclosing a violation of law. Id. The Board

further noted that “decision pertaining to continuing

SABRS3

followed

considerable

interagency

consultation and debate in the context of broader

programmatic discussions” and that disagreement

12b

with such fairly debatable policy decisions such as

this are not protected under Section (b)(8). Id. at ^ 13.

The appellant appealed the Board’s decision to the

U.S. Court of Appeals for the Federal Circuit (CAFC)

and, on November 13, 2017, the court upheld the

Board’s decision finding the appellant did not make

protected disclosures. StandJey v. Merit Systems

Protection Board, 715 Fed. App’x 998 (Fed. Cir. 2017).

The court found that the appellant’s allegations

“amount to a policy dispute” and that a disinterested

observer could not reasonably believe his allegations

“evidenced either a violation of law or a danger to

public health and safety.” Id. at 1002. The court noted

that the DOE is not statutorily responsible for the

requirements in Section 1065 and that “[a]ny

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.” Id. The

court further echoed the Board’s holding that Section

1065 did not “prescribe any particular means or

technology by which space-based nuclear detection

capabilities must be maintained.” Id. It found that

several interagency partners opposed the SABRS3

project and

[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.

Id. The appellant petitioned for a writ of certiorari to

the U.S. Supreme Court and, in May 2018, the Court

13b

denied the writ. Standley v. Merit Systems Protection

Board' 138 S.Ct. 2596 (May 29, 2018). Accordingly,

the Board’s decision finding the appellant’s

allegations do not constitute protected disclosures

remains intact.

DC-1221-17-0091-W-1

On November 1, 2016, the appellant filed an IRA

appeal alleging the agency retaliated against him for,

in part, his September 23, 2015 letter to Gottemoeller,

copied to OSC, when the agency nonselected him for

promotion in May 2015 and he received a lowered

performance rating in FY 2015. See Standley v.

Department of Energy, MSPB Docket No. DC-122117-0091‘W-l (April 13, 2017) (Initial Decision).

During case processing, AJ Mehring ruled that the

Board does not have jurisdiction over the September

23, 2015 letter as a protected disclosure under Section

(b)(8), as his statements therein constituted a policy

dispute and he failed to establish a reasonable person

would believe he was disclosing a violation of law. See

DC-1221-17-0091-W-1 Appeal File, Tab 13 at 8. AJ

Mehring also noted that the statements therein were

very similar to those the Board held were not

protected under (b)(8) for the same reasons. Id. AJ

Mehring found, however, that the letter constituted

protected activity under Section b(9)(C) because the

appellant also sent the letter to OSC, and she

assumed jurisdiction over that claim. Id. at 9.

On April 13, 2017, following a hearing, AJ

Mehring dismissed the appeal for lack of jurisdiction,

finding the appellant failed to exhaust his claim that

he was retaliated against for protected activity under

Section (b)(9)(C), i.e., that he was retaliated against

14b

specifically for sending the letter to OSC rather than

for the contents thereof. See Standley v. Department

of Energy,; MSPB Docket No. D01221-17-0091-W-1

(April 13, 2017) (Initial Decision). The appellant

appealed AJ Mehring’s decision to the CAFC and, on

November 13, 2017, the court affirmed the decision.

See Standley v. Department of Energy, 715 Fed.

App’x 1008 (Fed. Cir. 2017).

DC-1221 -18-0284- W-l

On January 29, 2018, the appellant filed an IRA

appeal alleging, in relevant part, that the agency

retaliated against him for forwarding his September

23, 2015 letter to OSC with respect to his FY 2015 and

FY 2016 performance ratings. See Standley v.

Department of Energy, MSPB Docket No. DC'122118-0284-W-l (November 21, 2018) (Initial Decision).

AJ Harrell found the appellant had now exhausted

his claim with OSC that his letter constituted

protected activity under Section (b)(9)(C) and that the

Board had jurisdiction over his reprisal claim. See

DC-1221-18-0284-W-1 Appeal File, Tab 18 at 10-11.

On November 21, 2018, AJ Harrell issued an Initial

Decision finding the agency retaliated against the

appellant for his protected activity when Kiess issued

him a lowered FY 2015 and FY 2016 performance

rating. See Standley v. Department ofEnergy, MSPB

Docket No. DC-1221-18-0284-W-1 (November 21,

2018) (Initial Decision). She ordered the agency to

reconstruct the appellant’s FY 2015 and FY 2016

ratings. Id.

15b

DC-1221 -20-0788- W~1

On August 6, 2020, the appellant filed the instant

appeal, alleging the agency nonselected him for

vacancies 14-0127-GOV, 15-0086'GOV, and 17-0124GOV in retaliation for perceived whistleblowing vis a

vis his statements on July 31, 2014, August 8, 2014,

March 26, 2015, and September 23, 2015. Specifically,

the appellant alleged that, though prior adjudications

determined these statements do not constitute actual

protected disclosures or activity under Sections (b)(8)

or (b)(9), Williams and Watkins perceived him to have

made protected disclosures or activity with regard

thereto. To support his claims, the appellant alleges

Williams and Watkins believe Section 1065 governs

the agency’s actions with respect to the SABRS

program and, therefore, they perceived him to have

been disclosing a violation of law and refusing to obey

an order that would require him to violate the law

(August 8, 2014 email).

On November 10, 2020,1 issued an Order Finding

Jurisdiction, wherein I found the Board has

jurisdiction over the appellant’s claims. AF, Tab 14.

The appellant did not request a hearing on his claims.

Pursuant to my Close of Record Order, the parties

timely submitted written evidence and argument

regarding the appellant’s claims. SeeAF, Tabs 32-37.

The record is now ripe for review and I have

considered all evidence of record in issuing this

decision.

16b

Applicable Law

The appellant has the burden of proving by a

preponderance of the evidence2 that the agency

perceived him to have made a protected

whistleblowing disclosure and/or engaged in

protected whistleblowing activity, and that this

perception was a contributing factor to the personnel

actions at issue. A protected disclosure is one that the

employee reasonably believes3 evidences one or more

of the categories of wrongdoing listed in 5 U.S.C. §

2302(b)(8), even if his belief is mistaken. Mithen v.:

Department of Veterans Affairs, 122 M.S.P.R. 489, U

24 (2015), affd, 652 F. App’x 971 (Fed. Cir. 2016).

In cases of perceived whistleblowing, the analysis

focuses on the agency’s perceptions, i.e., whether the

agency officials involved in the personnel actions at

issue believed that the appellant made or intended to

make disclosures that evidenced the type of

wrongdoing listed under 5 U.S.C. § 2302(b)(8) or

engaged in protected activity under 5 U.S.C. §

2302(b)(9). King v. Department of the Army, 116

M.S.P.R. 689, K 8 (2011). The appellant must then

prove the agency’s perception was a contributing

2 A “preponderance of the evidence” is defined as that degree

of relevant evidence that a reasonable person, considering the

record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R.

§1201.56(c)(2).

3 A reasonable belief exists if a disinterested observer with

knowledge of the essential facts known to and readily

ascertainable by the appellant could reasonably conclude that

the actions of the Government evidence one of the categories of

wrongdoing listed in section 2302(b)(8)(A). Lachance v. White,

174 F.3d 1378, 1381 (Fed. Cir. 1999); Chavez v. Department of

Veterans Affairs, 120 M.S.P.R. 285,18 (2013).

17b

factor in its decision to take or not take the personnel

action at issue. If the appellant meets this burden of

proof, corrective action must be ordered unless the

agency shows, by clear and convincing evidence,4 that

it would have taken the same action even in the

absence of a protected disclosure. 5 U.S.C. §

1221(e)(2); Chavez, 120 M.S.P.R. 285, H 28 (2013).

The appellant failed to prove he was perceived as a

whistleblower

I find the appellant failed to meet his burden of

proving either Williams or Watkins perceived him as

a whistleblower. The appellant alleges Williams and

Watkins knew that Section 1065 legally required the

agency to progress with SABRS, specifically the

development of SABRS-3. He argues:

The appellant.. .concluded that it was necessary

to field the SABRS'3 satellite on the STPSAT-6

satellite to prevent foreseeable gaps in the

capability that would cause it to fall out of

compliance with § 1065. After communicating

this analysis to Williams and Watkins, they too

perceived that fielding SABRS3 on STPSAT-6

would prevent a performance gap and loss of

compliance with PL 110-181 and that there was

no other practical way to do so.

AF, Tab 32 at 25. The appellant thus alleges that

Williams’ and Watkins’ belief that Section 1065

4 “Clear and convincing evidence” is defined as the measure

or degree of proof that produces in the mind of the trier of fact a

firm belief as to the allegations sought to be established. 5 C.F.R.

§ 1209.4(d). It is a higher standard than “preponderance of the

evidence.” Id.

18b

applied to the DOE proves both Williams and

Watkins perceived him to be a whistleblower with

respect to the alleged disclosures and actions:

Even though the MSPB and CAFC later ruled that

Section 1065 does not apply to the DOE, Williams’

and Watkins perception that it did apply means that

the Appellant’s disclosures and activity related to

Section 1065 are protected by 5 U.S. Code § 2302(b)(8)

and § 2302 (b)(9)(D). Id.

The appellant has failed to support his argument

by a preponderance of the evidence. First and

foremost, the appellant fails to provide any reference

to the record supporting his conclusion that Williams

and Watkins agreed with his conclusions that

SABRS-3 was required in order to comply with the

law. I find the record does not reflect that conclusion.

The appellant points to the agency’s yearly budget

requests, which repeatedly reference Section 1065 as

the justification for its request for funding the SABRS

project. AF, Tab 32 at 26. Even if Williams and

Watkins believed Section 1065 was the basis for the

agency’s funding of the SABRS-3 program, the

appellant has failed to establish that either Williams

or Watkins believed failure to fund SABRS-3 would

violate that provision. Citation to a law as support for

a budget item does not equate to that law requiring

the program’s existence. Rather, Williams’ August 8,

2014 email to the appellant suggests otherwise, in

that he reiterates to the appellant that the DOE

“holds no requirements” and that it was DOD’s

responsibility to ensure various aspects of the

SABRS-3 project were both funded and viable.

19b

The appellant also pointed to statements from

other agency and external government officials

suggesting they believed funding SABRS-3 was

required to comply with SABRS-3. For example, the

appellant pointed to Harrington’s February 26, 2013

statement to the HASC that budget cuts to the NDD

R&D program would cause it to miss its delivery

milestone, resulting in the carrier satellite being

launched without the SABRS-3 sensors and a

degradation of U.S. nuclear detonation detection

capability required by Section 1065. AF, Tab 32 at 26.

He also pointed to IPC Member Mathew Heavner’s

deposition testimony that that the IPC decided “the

United

States

Government,

including

the

Department of Energy, would continue funding and

implementing the SABRS-3 satellite as part of the

Administration’s compliance with Section 1065. Id.at

27; AF, Tab 1 at 57. The appellant has failed,

however, to establish that these opinions reflected

Williams’ or Watkins’ perception of the appellant’s

actions as whistleblowing.

The appellant’s arguments gloss over the central

requirement of the perceived whistleblower claim.

The crux of a perceived whistleblower claim is not

that the agency perceived the appellant to have

alleged a violation of a law. Rather, particularly as

here where the alleged disclosures were not actually

protected, the appellant must show the observer

believed it was protected, i.e., that the observer

perceived it as a reasonably-believed allegation that

the law was violated. See Demery v. Department of

the Army, 809 Fed. App’x 892, 898 (Fed. Cir. 2020)

(even if the alleged disclosure was later determined to

be unprotected, the appellant may still have a

20b

whistleblower claim “if the agency officials

nevertheless perceived her as having engaged in

protected activity”)» Montgomery v. Merit Systems

Protection Board, 382 Fed. App’x 942, 947 (Fed. Cir.

2010) (agency officials did not perceive appellant as a

whistleblower where they did not concede the

legitimacy of the allegations and perceived them as

frivolous).

Williams’ and Watkins’ knowledge of the

appellant’s allegations alone does not equate to their

perception that the allegations disclosed actual

wrongdoing, i.e., their perception of protected

disclosures. Id. In Montgomery, the Federal Circuit

held that an appellant was not perceived as a

whistleblower by supervisors who acknowledged her

allegations of wrongdoing against them and

cautioned her in writing about those allegations,

because they believed her allegations were frivolous.

382 Fed. App’x at 947. Given that perception, the

court stated it would be “unreasonable” for the agency

to perceive the appellant as a whistleblower and

retaliate against her, absent specific evidence

otherwise. Id. Coverage therefore extends to an

appellant who is perceived to have made protected

disclosures rather than unprotected allegations.5

5 Though the Federal Circuit in Montgomery appears to

suggest the perceived whistleblower doctrine could apply to

reprisals for frivolous, unprotected allegations (“[accordingly,

absent specific evidence that OIG retaliated against Ms.

Montgomery for her frivolous allegations, the perceived

whistleblower doctrine does not apply”), the court cited as

support for this statement Special Counsel v. Spears, 75

M.S.P.R. 639, 654-55 (1997) and specifically referenced the

Board’s holding therein that “the alleged disclosure must at least

be reasonable for the perceived whistleblower doctrine to apply.”

21b

The appellant acknowledges that both the Board

and the Federal Circuit ruled that the appellant did

382 Fed. App’x 942, 947. Furthermore, the Board in Spears

specifically rejected the argument that it need not find “whether

the disclosures could reasonably be believed to evidence matters

protected under the statute.” Id. at 653. The Board stated:

Where the individual making the disclosure

cannot be determined, it is still possible, and

necessary, to determine whether a hypothetical

observer could reasonably believe that the

information is evidence of agency wrongdoing

covered by the statute. Absent such a

reasonable belief, the statute does not apply.

Id. at 653. The Board then discussed several of its prior

perceived whistleblower cases, all of which involved underlying

disclosures that either did or were reasonably believed by the

recipient to have exposed covered wrongdoing. Id. at 653*54;

citing Mausser v. Department of the Army, 63 M.S.P.R 41, 44

(1994); Special Counsel v. Department of the Interior, 68

M.S.P.R. 19, 23 (1995); Thompson v. Farm Credit

Administration, hi M.S.P.R. 569, 581*82 (1991). I find the

Montgomery court’s reliance on Spears is affirmative of the

Board’s long-held interpretation

that the

perceived

whistleblower doctrine applies only to circumstances in which

the agency perceived a protected disclosure was made, rather

than a perception of unprotected allegations. Id. This is further

consistent with the Federal Circuit’s more recent decision in

Demery, wherein the court referenced Montgomery and held

that an appellant whose disclosure was later found to be

unprotected could still have a claim if the agency nevertheless

perceived her as having made such a protected disclosure. 809

Fed. App’x at 898. Accordingly, I find the Montgomery case does

not stand for the proposition that WPA coverage extends to cases

wherein the recipient does not perceive the appellant to have

made “disclosures that evidenced the type of wrongdoing listed

under 5 U.S.C. § 2302(b)(8).” King, 116 M.S.P.R. at H 8.

22b

not have a reasonable belief that he was disclosing a

violation of law, i.e. that his statements were not

protected disclosures. Accordingly, it is simply

unreasonable for the appellant to suggest that

Williams or Watkins held such a belief absent any

evidence substantiating that suggestion. I find no

such evidence in the record. The appellant has failed

to provide preponderant evidence that Williams or

Watkins perceived his statements as anything other

than policy disagreements over the direction of the

SABRS program. Regarding the appellant’s July 2014

briefing, it is clear the briefing discussed the vehicle

for the sensor payload as the necessary “gap-filler” for

Section 1065 compliance. AF, Tab 32 at 32. The

briefing explained the STP would provide the “gapfiller host” satellite that would house the SABRS-3

sensors. Id. It is therefore apparent that the concern

was not over whether DOE would meet its production

target for the payload sensors, but whether the DOD

would meet its responsibility to field a satellite to

carry those sensors into orbit. I find, therefore, there

is no reason for Williams or Watkins to have perceived

the appellant to have been reasonably alleging any

violation of law with his comments during this

briefing, nor has the appellant presented any such

evidence.

Likewise, it is unreasonable to conclude that

Williams perceived his August 8, 2014 email about

the STP host to have directed the appellant to violate

the law, or that the appellant’s response thereto was

a refusal to violate the law on his behalf. In his email

to the appellant, Williams expresses a clear

distinction between the agency’s responsibility to

produce SABRS-3 sensors (“We provide the payload.

23b

Period.”) and DOD’s responsibility to field a satellite

capable of housing those sensors (“If DoD can’t get it’s

act together to support the existing requirements, it’s

not ours to fix”). His email stresses that DOE must

stay out of DOD’s responsibilities so that it does not

get “stuck” having to commit funding to the issue for

years in the future. AF, Tab 1 at 87. He further states

that he is deciding “whether to stop SABRS 3 funding

and redirect.” Id.

No reasonable person could perceive that this

statement, given the context of the email, was a

directive to violate the law by stopping SABRS-3

work, nor has the appellant provided sufficient

evidence that Williams otherwise perceived or

intended his email to have that effect. The appellant

alleges Williams’ email “served as tacit approval to

the Appellant for him to [cancel SABRS-3] while at

the same time intimidating the Appellant into a

course of action that Wiliams could later disavow.”

AF, Tab 32 at 37. He further alleges Williams knew

DOD had not “gotten its act together” and that DOE

would be required to “fix” it. Id. at 52. He concludes

“Williams just said these things because he was

frustrated and trying to get the Appellant to do what

he would not, which was to stop spending money on

SABRS-3 so he could ‘redirect’ the funds to [a different

program].” Id.

I find the appellant’s argument convoluted,

illogical, and simply not supported by the record. It is

evident from his email that Williams believed the

program was in jeopardy due to DOD’s delays and, as

discussed above, Williams believed the responsibility

for successfully launching the SABRS-3 host rested

with DOD. The appellant himself argues that, at the

24b

time of this email, Williams expected the IPC to stop

SABRS-3 funding because he did not expect “a

credible plan” would emerge to spend those funds

given DOD’s delays. AF, Tab 32 at 52. He further

states that Williams believed the DOD had “given up

on SABRS” and, therefore, the funds for SABRS-3

could be redirected. Id. at 54. There is simply no

evidence that Williams perceived himself to be setting

the appellant up to take illegal action by simply

expressing his intention to redirect funds from a

program of questionable viability. The record likewise

does not support the appellant’s claim that Williams

perceived the appellant’s response as a refusal to obey

any order that would require violation of law. In his

response, the appellant agrees with Williams

regarding the funding “kluge” and states he would

execute Williams’ decision to stop funding SABRS'3 if

and when it is made (“We will stop when you decide”).

The appellant makes no refusal and does not indicate

to Williams that he believes he has been directed to

violate the law. Accordingly, I find it unreasonable to

conclude that Williams perceived this response to

have done so.

Regarding the appellant’s March 2015 edits to the

HASC briefing, I find the appellant failed to prove

either Williams or Watkins perceived the edits as

whistleblowing. The appellant requested that the

USAF include reference in the brief to Section 1065

as requiring USNDS to be maintained in the future,

which the USAF did. I note the appellant described

the briefing as a joint document prepared by the

Secretary of Defense “in coordination with the

Secretary of Energy and the Secretary of State.” AF,

Tab 32 at 38. It is therefore entirely reasonable to

25b

reference Section 1065’s basic requirement for the

DOD in the briefing. The appellant failed to present

evidence indicating either Williams or Watkins

perceived him to have disclosed a violation of law with

this simple edit. In fact, he failed to present evidence

that either had had any reaction to the appellant’s

edit at all. Rather, the email was sent as an “FYSA”

to the appellant, who acknowledges Williams

forwarded the email “without expressing an

objection” or any sign of surprise. AF, Tab 32 at 39,

43. The appellant argues only that Williams

statement that Creedon may want to hold off on the

brief until after the IPC evidenced his expectation

that the IPC would stop SABRS~3 funding, despite

“knowing” the appellant “would not stop advocating

for SABRS'3 as the way to comply with Section 1065

unless given a direct order.” AF, Tab 32 at 39. The

appellant’s arguments again convolute the gravamen

of a perceived whistleblower claim and fails to meet

his burden of proof.

Regarding the appellant’s September 23, 2015

letter, his statements have been previously

adjudicated as unprotected policy discussion.

Accordingly, it would be unreasonable to find that

Williams or Watkins perceived the appellant made a

protected disclosure absent particular evidence

establishing that perception. Again, the appellant has

failed to present such evidence. Williams’ response to

Harrington specifically refuted the appellant’s

allegations. It states that, while the appellant raised

“what he believes” to be serious issues, Williams

responds unequivocally that “in no way has DNN

R&D or myself obstructed implementation of US

Law.” AF, Tab 34 at 26. He reiterates that, “[i]n fact,

26b

we (NNSA) has increased funding for this important

area and have driven the interagency to keep this a

priorityto met US Law.” Id. Williams similarly

testified in a prior Board proceeding “I felt that the

content was incorrect that that was neither here nor

there.” AF, Tab 32 at 58.

The appellant has failed to present any evidence

that either Williams or Watkins behaved in a manner

that suggested they gave the appellant’s allegations

credence. C.f., e.g., Thompson v. Farm Credit

Administration, 51 M.S.P.R. 569, 581-82 (1991)

(manager perceived appellant as a whistleblower

where there was evidence that he believed the

disclosure would be embarrassing and possibly

evidence mismanagement and abuse of discretion).

Rather, he alleges more generally that Williams was

negatively affected by the letter. The appellant

presents evidence that the appellant was questioned

by Harrington regarding the contents of the letter

and, after speaking with her, Harrington directed him

to call all those copied on the letter to “explain the

content.” AF, Tab 32 at 57. The appellant further

alleges that Harrington fielded questions about the

letter from Creedon after a January 2016 meeting on

another topic, and said she was looking into the

matter. Id. at 57; AF, Tab 35 at 10. He also points to

Kiess’s sworn testimony, provided during an earlier

Board proceeding, regarding Williams’ reaction to the

letterI think [Williams] was taken by surprise. I

think we had some professional differences of

opinion on issues we were debating at the time.

I think [Williams] was surprised by the

disclosure, not expecting it and I think he was

27b

seeing what impact...not sure how the people

who received the letter were going to respond

and I think he adopted a sort of wait and see

attitude....I think he was perhaps a little

surprised, maybe a little disappointed that our

differences on issues resulted in that...I think

[Williams] just took stock of it and kept on

going, managing the office.

AF, Tab 34 at 50. The appellant concludes that

“Williams had to actively respond to the appellant’s

September 23, 2015 letter and that it involved high

level meetings that required preparation. Reacting to

the Appellant’s disclosure was inconvenient, and very

likely included some embarrassment.” AF, Tab 32 at

58. He states that his letter “forced Williams to do

extra work and spend time explaining his view of

those matters to his supervisors.” Id.at 60.

I find this evidence corroborates Williams’s

expressed disagreement with the appellant’s

assertions rather than his perception of their validity.

Nothing about Williams’ actions in this regard

supports the appellant’s burden of proving Williams

perceived the appellant to have had a reasonable

belief that he was disclosing a violation of law.6 Nor

6 The appellant points to AJ Harrell’s Initial Decision finding,

in part, that Williams and Kiess had a “strong motive” to

retaliate against the appellant as a result of the September 23,

2015 letter when Kiess issued him a lower FY 2015 performance

evaluation, with which Williams concurred. See Vaughn v.

Department of Energy, MSPB Docket No. DC-1221-18-0284-W1 (November 21, 2018) (Initial Decision). I note that this finding

was made specifically with respect to the appellant’s protected

activity under 5 U.S.C. 2302 § (b)(9)(C), in that he submitted a

copy of the letter to the OSC. AJ Harrell did not make findings

28b

does the record otherwise contain such support. The

appellant speculates that Williams left the agency the

year after his September 23, 2015, a move he alleges

“may have been motivated by a desire to escape the

SABRS-3 episode.” AF, Tab 32 at 60. The appellant

presents nothing but conjecture to support that

allegation. I find no indication in the record that the

letter either caused Williams to depart the agency, or

that his departure was otherwise negatively

prompted by the letter. In fact, other than the

appellant’s argument that Williams had to do “extra

work” to explain the appellant’s allegations to the

letter’s recipients, the appellant presents no evidence

of any negative effect his letter had on Williams. As

the appellant points out, Williams left the agency to

take a job with the Department of the Defense (DOD).

I note that that Director of Global Operations for the

DOD U.S. Strategic Command was copied on the

September 23, 2015 letter. AF, Tab 1 at 68.1 find the

appellant allegation are speculative, conclusory, and

generally unsupported by the record.

I note that the appellant did not put forth

particular evidence and argument regarding Watkins’

alleged perception of him as a whistleblower with

respect to any of the alleged whistleblowing in this

appeal. He states that “Williams’ perceptions are

much more important that [sic] Watkins’ because

Williams was the ADA” during the first two

nonselections at issue. AF, Tab 36 at 32. I find the

appellant failed to present preponderant evidence

that Watkins perceived him as a whistleblower with

as to whether Williams perceived the appellant as having made

protected disclosures within that letter. Id.

29b

respect to the allegations in this appeal. In support of

his claim, the appellant argues only that Watkins was

aware of the appellant’s alleged whistleblower

disclosures and activity but registered no

disagreement with any of them. AF, Tab 36 at 32.

Regarding the September 23, 2015 letter, the

appellant alleges in a perfunctory manner that

“Watkins was also involved, and it likely affected him

too.” AF, Tab 32 at 60. I note, however, that the

appellant did not copy Watkins on the letter and the

letter did not address or dispute his actions with any

substance. AF, Tab 35 at 10. Nevertheless, Watkins’

knowledge of the statements and actions at issue does

not itself establish that he perceived the appellant to

have been a whistleblower. Rather, as discussed in

detail above, the appellant must establish Watkins

perceived the appellant to have been disclosing a

violation of law or refusing to obey an order that

would violate a law. The appellant has failed to do so.

I find the appellant has simply failed to support his

allegations with respect to both Williams and

Watkins.

As the appellant has failed to meet his burden of

proving the agency perceived him as a whistleblower

with respect to the statements and actions at issue, I

need not address whether those statements and

actions contributed to the nonselections at issue, or

whether the agency would have nonselected him

regardless of his statements and actions.

DECISION

The appellant’s request for corrective action is

DENIED.

30b

FOR THE BOARD:

/S/

Monique Binswanger

Administrative Judge

NOTICE TO APPELLANT

This initial decision will become final on July 6,

2021, unless a petition for review is filed by that date.

This is an important date because it is usually the last

day on which you can file a petition for review with

the Board. However, if you prove that you received

this initial decision more than 5 days after the date of

issuance, you may file a petition for review within 30

days after the date you actually receive the initial

decision. If you are represented, the 30-day period

begins to run upon either your receipt of the initial

decision or its receipt by your representative,

whichever comes first. You must establish the date on

which you or your representative received it. The date

on which the initial decision becomes final also

controls when you can file a petition for review with

one of the authorities discussed in the “Notice of

Appeal Rights” section, below. The paragraphs that

follow tell you how and when to file with the Board or

one of those authorities. These instructions are

important because if you wish to file a petition, you

must file it within the proper time period.

BOARD REVIEW

You may request Board review of this initial

decision by filing a petition for review. If the other

party has already filed a timely petition for review,

you may file a cross petition for review. Your petition

or cross petition for review must state your objections

31b

to the initial decision, supported by references to

applicable laws, regulations, and the record. You

must file it withThe Clerk of the Board

Merit Systems Protection Board

1615 M Street, NW.

Washington, DC 20419

A petition or cross petition for review may be filed

by mail, facsimile (fax), personal or commercial

delivery, or electronic filing. A petition submitted by

electronic filing must comply with the requirements

of 5 C.F.R. § 1201.14, and may only be accomplished

at the Board's e-Appeal website (https*//eappeal.mspb.gov).

NOTICE OF LACK OF QUORUM

The Merit Systems Protection Board ordinarily is

composed of three members, 5 U.S.C. § 1201, but

currently there are no members in place. Because a

majority vote of the Board is required to decide a case,

see 5 C.F.R. § 1200.3(a), (e), the Board is unable to

issue decisions on petitions for review filed with it at

this time. See 5 U.S.C. § 1203. Thus, while parties

may continue to file petitions for review during this

period, no decisions will be issued until at least two

members are appointed by the President and

confirmed by the Senate. The lack of a quorum does

not serve to extend the time limit for filing a petition

or cross petition. Any party who files such a petition

must comply with the time limits specified herein.

For alternative review options, please consult the

section below titled “Notice of Appeal Rights,” which

sets forth other review options.

32b

Criteria for Granting a Petition or Cross Petition for

Review

Pursuant to 5 C.F.R. § 1201.115, the Board

normally will consider only issues raised in a timely

filed petition or cross petition for review. Situations in

which the Board may grant a petition or cross petition

for review include, but are not limited to, a showing

that(a) The initial decision contains erroneous findings

of material fact, (l) Any alleged factual error must be

material, meaning of sufficient weight to warrant an

outcome different from that of the initial decision. (2)

A petitioner who alleges that the judge made

erroneous findings of material fact must explain why

the challenged factual determination is incorrect and

identify specific evidence in the record that

demonstrates the error. In reviewing a claim of an

erroneous finding of fact, the Board will give

deference to an administrative judge’s credibility

determinations when they are based, explicitly or

implicitly, on the observation of the demeanor of

witnesses testifying at a hearing.

(b) 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 petitioner must explain how the error

affected the outcome of the case.

(c) The 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.

33b

(d) New and material evidence or legal argument

is available that, despite the petitioner’s due

diligence, was not available when the record closed.

To constitute new evidence, the information

contained in the documents, not just the documents

themselves, must have been unavailable despite due

diligence when the record closed.

As stated in 5 C.F.R. § 1201.114(h), a petition for

review, a cross petition for review, or a response to a

petition for review, whether computer generated,

typed, or handwritten, is limited to 30 pages or 7500

words, whichever is less. A reply to a response to a

petition for review is limited to 15 pages or 3750

words, whichever is less. Computer generated and

typed pleadings must use no less than 12 point

typeface and 1-inch margins and must be double

spaced and only use one side of a page. The length

limitation is exclusive of any table of contents, table

of authorities, attachments, and certificate of service.

A request for leave to file a pleading that exceeds the

limitations prescribed in this paragraph must be

received by the Clerk of the Board at least 3 days

before the filing deadline. Such requests must give

the reasons for a waiver as well as the desired length

of the pleading and are granted only in exceptional

circumstances. The page and word limits set forth

above are maximum limits. Parties are not expected

or required to submit pleadings of the maximum

length. Typically, a well-written petition for review is

between 5 and 10 pages long.

If you file a petition or cross petition for review,

the Board will obtain the record in your case from the

administrative judge and you should not submit

anything to the Board that is already part of the

34b

record. A petition for review must be filed with the

Clerk of the Board no later than the date this initial

decision becomes final, or if this initial decision is

received by you or your representative more than 5

days after the date of issuance, 30 days after the date

you or your representative actually received the

initial decision, whichever was first. If you claim that

you and your representative both received this

decision more than 5 days after its issuance, you have

the burden to prove to the Board the earlier date of

receipt. You must also show that any delay in

receiving the initial decision was not due to the

deliberate evasion of receipt. You may meet your

burden by filing evidence and argument, sworn or

under penalty of perjury (see 5 C.F.R. Part 1201,

Appendix 4) to support your claim. The date of filing

by mail is determined by the postmark date. The date

of filing by fax or by electronic filing is the date of

submission. The date of filing by personal delivery is

the date on which the Board receives the document.

The date of filing by commercial delivery is the date

the document was delivered to the commercial

delivery service. Your petition may be rejected and

returned to you if you fail to provide a statement of

how you served your petition on the other party. See

5 C.F.R. § 1201.4(j). If the petition is filed

electronically, the online process itself will serve the

petition on other e-filers. See 5 C.F.R. § 1201.14(j)(l).

A cross petition for review must be filed within 25

days after the date of service of the petition for review.

35b

NOTICE TO AGENCY/INTERVENOR

The agency or intervenor may file a petition for

review of this initial decision in accordance with the

Board's regulations.

NOTICE OF APPEAL RIGHTS

You may obtain review of this initial decision only

after it becomes final, as explained in the “Notice to

Appellant” section above. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time

limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although

we offer the following summary of available appeal

rights, the Merit Systems Protection Board does not

provide legal advice on which option is most

appropriate for your situation and the rights

described below do not represent a statement of how

courts will rule regarding which cases fall within

their jurisdiction. If you wish to seek review of this

decision when it becomes final, you should

immediately review the law applicable to your claims

and carefully follow all filing time limits and

requirements. Failure to file within the applicable

time limit may result in the dismissal of your case by

your chosen forum.

Please read carefully each of the three main

possible choices of review below to decide which one

applies to your particular case. If you have questions

about whether a particular forum is the appropriate

one to review your case, you should contact that forum

for more information.

(l) Judicial review in general. As a general rule, an

appellant seeking judicial review of a final Board

36b

order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must

be received by the court within 60 calendar days of the

date this decision becomes final. 5 U.S.C. §

7703(b)(1)(A).

If you submit a petition for review to the U.S.

Court of Appeals for the Federal Circuit, you must

submit your petition to the court at the following

address'

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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, 10, and 11.

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

httpV/www.mspb.gov/probono

for

information regarding pro bono representation for

Merit Systems Protection Board appellants before the

Federal Circuit. The Board neither endorses the

services provided by any attorney nor warrants that

any attorney will accept representation in a given

case.

(2) Judicial or EEOC review of cases involving a

claim of discrimination. This option applies to you

only if you have claimed that you were affected by an

37b

action that is appealable to the Board and that such

action was based, in whole or in part, on unlawful

discrimination. If so, you may obtain judicial review

of this decision—including a disposition of your

discrimination claims—by filing a civil action with an

appropriate U.S. district court (not the U.S. Court of

Appeals for the Federal Circuit), within 30 calendar

days after this decision becomes final under the rules

set out in the Notice to Appellant section, above. 5

U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S.

137 S. Ct. 1975

(2017). If the action involves a claim of discrimination

based on race, color, religion, sex, national origin, or

a disabling condition, you may be entitled to

representation by a court-appointed lawyer and to

waiver of any requirement of prepayment of fees,

costs, or other security. See 42 U.S.C. § 2000e_5(£) and

29 U.S.C. § 794a.

Contact information for U.S. district courts can be

found at their respective websites, which can be

accessed through the link belowhttpV/www.uscourts.gov/Court_Locator/Court

Websites.aspx.

Alternatively, you may request review by the

Equal Employment Opportunity Commission (EEOC)

of your discrimination claims only, excluding all other

issues. 5 U.S.C. § 7702(b)(1). You must file any such

request with the EEOC’s Office of Federal Operations

within 30 calendar days after this decision becomes

final as explained above. 5 U.S.C. § 7702(b)(1).

If you submit a request for review to the EEOC by

regular U.S. mail, the address of the EEOC is^

38b

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via

commercial delivery or by a method requiring a

signature, it must be addressed to'

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower

Protection Enhancement Act of 2012. This option

applies to you only if you have raised claims of

reprisal for whistleblowing disclosures under 5 U.S.C.

§ 2302(b)(8) or other protected activities listed in 5

U.S.C. § 2302(b)(9)(A)©, (B), (C), or (D). If so, and

your judicial petition for review “raises no challenge

to the Board's disposition of allegations of a prohibited

personnel practice described in section 2302(b) other

than practices described in section 2302(b)(8) or

2302(b)(9)(A)©, (B), (C), or (D),” then you may file a

petition for judicial review with 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 of the

date this decision becomes final under the rules set

out in the Notice to Appellant section, above. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the

U.S. Court of Appeals for the Federal Circuit, you

39b

must submit your petition to the court at the following

address^

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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, 10, and 11.

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

httpV/www.mspb.gov/probono

for

information regarding pro bono representation for

Merit Systems Protection Board appellants before the

Federal Circuit. The Board neither endorses the

services provided by any attorney nor warrants that

any attorney will accept representation in a given

case.

Contact information for the courts of appeals can

be found at their respective websites, which can be

accessed through the link belowhttp 7/www. uscourt s. gov/Court_Locator/Court

Websites, aspx^l

40b