NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VAUGHN HOEFLIN STANDLEY,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2017-2082
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-17-0091-W-1.
______________________
Decided: November 13, 2017
______________________
VAUGHN HOEFLIN STANDLEY, Gainesville, VA, pro se.
TARA JEAN KILFOYLE, Office of General Counsel, Merit
Systems Protection Board, Washington, DC, for respond-
ent. Also represented by KATHERINE M. SMITH, JEFFREY
A. GAUGER.
______________________
Before PROST, Chief Judge, WALLACH and HUGHES, Circuit
Judges.
2 STANDLEY v. MERIT SYS. PROT. BD.
PER CURIAM.
Petitioner Vaughn Hoeflin Standley appeals a final
order of the Merit Systems Protection Board (“MSPB”)
dismissing his individual right of action (“IRA”) appeal for
lack of jurisdiction. See Standley v. Dep’t of Energy, No.
DC-1221-17-0091-W-1,
2017 WL 1374922 (M.S.P.B. Apr.
13, 2017) (Resp’t’s App. 1–11). We have jurisdiction
pursuant to
28 U.S.C. § 1295(a)(9) (2012). We affirm.
BACKGROUND
In a related opinion also issued today, we addressed
the scope of Mr. Standley’s separate appeal involving the
U.S. Department of Energy (“DOE”) where he alleged that
his supervisor frustrated his attempts to compete for a
director position in retaliation for alleged protected disclo-
sures regarding the third iteration of the Space Atmos-
pheric Burst Reporting System (“SABRS3”). See Standley
v. Merit Sys. Prot. Bd. (Standley I), No. 2017-1691 (Fed.
Cir. Nov. 13, 2017). In Standley I, we affirmed the
MSPB’s final decision dismissing Mr. Standley’s appeal
for lack of jurisdiction because Mr. Standley failed to non-
frivolously allege violations of the Whistleblower Protec-
tion Act (“WPA”), Pub. L. No. 101-12,
103 Stat. 16 (1989)
(codified as amended by Whistleblower Protection En-
hancement Act of 2012, Pub. L. No. 112–199,
126 Stat.
1465 in scattered sections of 5 U.S.C.). See Standley I,
slip op. at 10. We presume familiarity with the facts as
recited in Standley I, and recite additional facts as neces-
sary to address subsequent developments here.
In December 2015, three months after the Office of
Special Counsel (“OSC”) terminated Mr. Standley’s OSC
complaint related to his attempts to compete for a director
position in Standley I, see id. at 3, Mr. Standley filed a
STANDLEY v. MERIT SYS. PROT. BD. 3
new complaint with the OSC, see Resp’t’s App. 76–85. 1 In
the Second Complaint, Mr. Standley alleged that, in
retaliation for his “09/23/2015 disclosure,” referring to a
disclosure on September 23, 2015, in the form of a letter
sent to “Rose Gottemoeller, Under Secretary of State for
Arms Control and International Security Affairs,” id. at
70, see id. at 86−89, stating that his director “was ob-
structing the 2008 National Defense Authorization Act
[(‘2008 NDAA’)],” the DOE gave him a lower annual
performance rating in November 2015 than he deserved,
id. at 78; see id. at 78–79. Mr. Standley did not further
explain or attach evidence to his Second Complaint for
any of these aforementioned disclosures.
In an August 2016 preliminary determination letter,
the OSC explained that the Second Complaint’s alleged
protected disclosure appeared to be the same as those
being appealed in Standley I. See id. at 74–75. The OSC
did not specifically address the alleged disclosure of the
September 23, 2015 letter. See id. Therefore, because
“the MSPB [previously] found [Mr. Standley’s] disclosure
urging the agency to implement SABRS3 [was] not pro-
tected but instead . . . a disagreement over agency policy,”
and the “OSC litigates cases before the MSPB,” the OSC
was “bound by” the administrative judge’s (“AJ”) conclu-
sion. Id. at 75.
In his response to the Preliminary Determination Let-
ter, Mr. Standley clarified certain alleged protected dis-
closures forming the basis for his Second Complaint and
reported “additional facts and allegations . . . that [we]re
new since filing” the Second Complaint. Id. at 63; see id.
at 65−73. In relevant part, he argued that the September
23, 2015 letter was a protected disclosure under
1 For ease of reference, we refer to the complaint
reviewed in Standley I as “First Complaint” and the
complaint under review here as “Second Complaint.”
4 STANDLEY v. MERIT SYS. PROT. BD.
§ 2302(b)(8). He also argued that the act of filing a DOE
grievance, the First Complaint, and the IRA appeal in
Standley I were protected activities under
5 U.S.C.
§ 2302(b)(9)(A)(i). See
id. at 63–67, 71−72. And he indi-
cated that a copy of the September 23, 2015 letter was
sent to the OSC. Id. at 70.
In September 2016, the OSC informed Mr. Standley
that it had investigated and “made a final determination
to close [his] file.” Id. at 60; see id. at 61–62. While it
agreed that Mr. Standley’s September 23, 2015 alleged
disclosure “pertained to a different aspect of the SABRS3
program,” the OSC stated that an “AJ would similarly
conclude that it concerns disagreements over matters of
government policy.” Id. at 61. The OSC found that Mr.
Standley’s allegations regarding retaliation for “filing an
administrative grievance, an IRA with the MSPB, or [the
First Complaint]” were new allegations raised for the first
time in his response to the Preliminary Determination
Letter. Id. The OSC informed Mr. Standley of its policy
“to ask complainants to file a new complaint if they want
OSC to evaluate a new allegation that they raised after
[OSC] ha[s] already issued a preliminary determination
letter.” Id. Mr. Standley did not file a new complaint but
instead filed an IRA appeal with the MSPB. Id. at 47−59.
In February 2017, an AJ dismissed all but one of Mr.
Standley’s claims for lack of jurisdiction for reasons other
than failure to exhaust administrative remedies at the
OSC. See id. at 16−30. The AJ found it lacked jurisdic-
tion over: (1) the claim that Mr. Standley was not select-
ed for the director position in May 2015 based on filing
the DOE grievance underlying Standley I because Mr.
Standley failed to non-frivolously allege that his grievance
sought to remedy a violation of § 2302(b)(8), as required
STANDLEY v. MERIT SYS. PROT. BD. 5
under § 2302(b)(9)(A)(i), 2 id. at 21−22; (2) the alleged
disclosure in the September 23, 2015 letter, because it
related to a policy dispute rather than a violation of law,
id. at 22−23; and (3) the claim that Mr. Standley was
retaliated against for filing the IRA appeal underlying
Standley I because he failed to non-frivolously allege that
the IRA appeal “was a contributing factor” in his negative
performance review, id. at 25. Then in April 2017, after a
hearing, the AJ dismissed for lack of jurisdiction Mr.
Standley’s final claim that he was retaliated against for
disclosing his September 23, 2015 letter to the OSC. 3 See
id. at 4–5. The AJ found that it was required to defer to
the OSC’s determination that the OSC “did not have the
opportunity to consider” Mr. Standley’s allegations relat-
ed to his alleged disclosure “when he copied [the] OSC on
the September 23, 2015 letter.” Id. Mr. Standley did not
file a petition for review with the MSPB, so the AJ’s
decision became the final MSPB decision, id. at 5, which
Mr. Standley appealed.
DISCUSSION
I. Standard of Review and Legal Standard
We review the MSPB’s legal determinations, includ-
ing whether the MSPB has jurisdiction over an appeal de
novo. Johnston v. Merit Sys. Prot. Bd.,
518 F.3d 905, 909
(Fed. Cir. 2008). “The petitioner bears the burden of
establishing error in the [MSPB]’s decision.” Harris v.
2 Section 2302(b)(9)(A)(i) prevents, in relevant part,
retaliation because of “the exercise of any appeal, com-
plaint, or grievance right . . . with regard to remedying a
violation of paragraph (8).”
3 The AJ noted that “[Mr. Standley] never specifi-
cally raised this argument to [the] OSC, but rather [the
AJ] inferred it from [Mr. Standley’s] pleadings and the
document itself.” Resp’t’s App. 4 n.2 (citation omitted).
6 STANDLEY v. MERIT SYS. PROT. BD.
Dep’t of Veterans Affairs,
142 F.3d 1463, 1467 (Fed. Cir.
1998).
Congress has provided federal employees the right to
seek corrective action from the MSPB whenever personnel
action is taken in retaliation for whistleblowing activities.
See
5 U.S.C. § 1221(a) (“Subject to the provisions of sub-
section (b) of this section and subsection 1214(a)(3), an
employee . . . may, with respect to any personnel action
taken . . . as a result of a prohibited personnel practice
described in section 2302(b)(8) or section
2302(b)(9) . . . seek corrective action from the [MSPB].”).
Under
5 U.S.C. § 1214(a)(3), except where an employee
has a right of direct appeal to the MSPB, the MSPB only
has jurisdiction over whistleblower cases if an employee
has exhausted his administrative remedies before the
OSC. See
id. § 1214(a)(3) (requiring that an employee
first “seek corrective action from the [OSC] before seeking
corrective action from the [MSPB]”).
In determining if an employee has exhausted his rem-
edies, we look to “the complaint to OSC requesting correc-
tive action, . . . not the employee’s subsequent
characterization of that statement in his appeal to the
[MSPB].” Serrao v. Merit Sys. Prot. Bd.,
95 F.3d 1569,
1577 (Fed. Cir. 1996) (citation omitted). The employee
must also “articulate with reasonable clarity and preci-
sion [before OSC] the basis for his request for corrective
action under the WPA” to allow OSC to effectively pursue
an investigation.
Id. (internal quotation marks and
citation omitted); see Ward v. Merit Sys. Prot. Bd.,
981
F.2d 521, 526 (Fed. Cir. 1992) (noting that “the employee
must inform the [OSC] of the precise ground of his charge
of whistleblowing”).
II. The MSPB Lacks Jurisdiction over Mr. Standley’s
Appeal
Mr. Standley argues that the AJ “erred as a matter of
law” by “requiring precise details of . . . each specific
STANDLEY v. MERIT SYS. PROT. BD. 7
whistleblower disclosure to find that OSC administrative
remedies were exhausted,” Pet’r’s Br. 9; see
id. at 9−19,
and by “wrongly den[ying]” his claims as “a policy issue,”
id. at 19; see id. at 19−28. We disagree. 4
Mr. Standley failed to exhaust his claims relating to
copying the OSC on the September 23, 2015 letter, as well
as those related to filing the administrative grievance, the
First Complaint to OSC, and the IRA appeal resulting in
Standley I, by not providing the OSC a sufficient basis to
pursue an investigation that could lead to corrective
action, as required by Ward. We have previously ex-
plained that a petitioner must inform the OSC of the
“precise ground” for his charge of whistleblowing. Ward,
981 F.2d at 526; see Ellison v. Merit Sys. Prot. Bd.,
7 F.3d
1031, 1036 (Fed. Cir. 1993) (“[T]he test of the sufficiency
of an employee’s charges of whistleblowing to the OSC is
the statement that the employee makes in the complaint
requesting corrective action under
5 U.S.C. § 1214 . . . .”
(citation omitted)). Mr. Standley has failed to meet this
requirement for two reasons.
First, in the Second Complaint, Mr. Standley does not
allege retaliation against him for any appeal, complaint,
or grievance right. See Resp’t’s App. 76–85. Instead, Mr.
Standley’s claims that his supervisor retaliated against
him for disclosing information to the OSC, and for filing a
grievance and IRA appeal, were only first mentioned in
his Response to the Preliminary Determination Letter
that he submitted more than 260 days after filing his
Second Complaint. See id. at 63, 71–73, 86–89. However,
4 We dismiss Mr. Standley’s § 2302(b)(8) claim re-
lated to the alleged disclosures in the September 23, 2015
letter for the same reasons we dismissed the alleged
disclosures in Standley I, namely, that they relate to a
policy dispute rather than a violation of law. See Stand-
ley I, slip op. at 8–9.
8 STANDLEY v. MERIT SYS. PROT. BD.
responses to preliminary determination letters must only
“address the reasons” cited in reaching the preliminary
determination. Id. at 75. Anything more will not “give
the [OSC] sufficient basis to pursue an investigation,” as
required to satisfy the exhaustion requirement. Ellison,
7
F.3d at 1037 (citation omitted).
Second, Mr. Standley never explicitly raised the claim
that copying the OSC on the September 23, 2015 letter
led to retaliation in violation of § 2302(b)(9)(C). 5 See
Respt’s App. 63−73, 76−85; see also id. at 4 n.2 (describing
the AJ’s inference of Mr. Standley’s § 2302(b)(9)(C) claim
and acknowledging the OSC’s failure to address this
potential claim). We agree that Mr. Standley did not
allege this violation with sufficient precision to allow the
OSC to conduct an investigation.
Mr. Standley’s citation to Briley v. National Archives
& Records Administration,
236 F.3d 1373 (Fed. Cir. 2001),
Pet’r’s Br. 17, does not persuade us otherwise. In Briley,
we recognized that despite the employee giving “a more
detailed account of her whistleblowing activities [in front
of the AJ] than she did in her letters to the OSC,” her
letters to the OSC “nevertheless contain[ed] the core of
[her] retaliation claim.”
236 F.3d at 1378. Thus, we
found the complaint and further letters that the employee
sent to the OSC provided a sufficient basis to pursue an
investigation, “satisfy[ing the employee’s] obligation to
seek corrective action and exhaust her remedies before
the OSC.”
Id. In contrast, neither Mr. Standley’s Second
Complaint nor his subsequent letters to the OSC “contain
the core of [his] retaliation claim,” Briley,
236 F.3d at
5 Section 2302(b)(9)(C) prevents, in relevant part,
retaliation because of “disclosing information to . . . the
Special Counsel, in accordance with applicable provisions
of law . . . .”
STANDLEY v. MERIT SYS. PROT. BD. 9
1378, such that he failed to exhaust his remedies with the
OSC.
Accordingly, we find that dismissal of Mr. Standley’s
IRA appeal for lack of jurisdiction was appropriate on all
grounds. Our holding does not preclude Mr. Standley
from refiling another complaint with the OSC regarding
the new alleged disclosures asserted in the instant appeal
that the OSC has not yet had an opportunity to investi-
gate.
CONCLUSION
We have considered Mr. Standley’s remaining argu-
ments and find them unpersuasive. Accordingly, the
Final Order of the Merit Systems Protection Board is
AFFIRMED
COSTS
Each party shall bear its own costs.
