NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VAUGHN HOEFLIN STANDLEY,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
DEPARTMENT OF ENERGY,
Intervenor
______________________
2017-1691
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-16-0168-W-1.
______________________
Decided: November 13, 2017
______________________
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 BRYAN G. POLISUK, KATHERINE
M. SMITH, JEFFREY A. GAUGER.
2 STANDLEY v. MERIT SYS. PROT. BD.
ANTHONY F. SCHIAVETTI, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for intervenor. Also represent-
ed by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR.,
ALLISON KIDD-MILLER.
______________________
Before PROST, Chief Judge, WALLACH and HUGHES, Circuit
Judges.
PER CURIAM.
Petitioner Vaughn Hoeflin Standley appeals a final
order of the Merit Systems Protection Board (“MSPB”)
affirming an administrative judge’s (“AJ”) dismissal of his
individual right of action (“IRA”) appeal for lack of juris-
diction. See Standley v. Dep’t of Energy, No. DC-1221-16-
0168-W-1,
2017 WL 56181, at ¶ 1 (M.S.P.B. Jan. 3, 2017)
(final decision); Standley v. Dep’t of Energy, No. DC-1221-
16-0168-W-1 (M.S.P.B. Jan. 13, 2016) (initial decision)
(Resp’t’s App. 14–25). We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9) (2012). We affirm.
BACKGROUND
Mr. Standley works as a general engineer in the De-
partment of Energy’s (“DOE”) National Nuclear Security
Administration (“NNSA”), Office of Nuclear Detonation
Detection (“NDD”). See Standley,
2017 WL 56181, at ¶ 2;
Resp’t’s App. 30−31. Mr. Standley’s responsibilities
include work on instrumented payloads that the NNSA
contributes to a Department of Defense (“DOD”) system of
nuclear detonation detection. Resp’t’s App. 33−34. In
January 2014, Mr. Standley told his supervisor there was
“a need to field” a third iteration of the Space Atmospher-
ic Burst Reporting System (“SABRS3”). 1 Id. at 33, 35. In
1 SABRS3 is the third iteration of a satellite pay-
load, SABRS, designed to detect nuclear detonation in
STANDLEY v. MERIT SYS. PROT. BD. 3
July and August 2014, Mr. Standley reported to his
supervisor that he had started the process to begin inte-
grating SABRS3 on a U.S. Air Force satellite. See id. at
35−36. The supervisor responded that he was considering
de-funding SABRS3 because he did not support NNSA’s
work on the project beyond “provid[ing] the payload” and
did not “want [the] NNSA stuck paying for [SABRS3] for
the next [twenty] years.” Id. at 36. Mr. Standley re-
sponded, “Understood. We will stop when you decide.” Id.
In September 2014, the DOE advertised a Director
position in the NDD. Id. The Deputy Director of the
NDD announced that current employees in the office
would not be considered for the Director posting, yet Mr.
Standley still submitted his application for the position.
Id. He was referred to the hiring manager for further
consideration, but was ultimately not selected. Id. The
position was canceled, re-posted in March 2015, and
eventually awarded to an office colleague of Mr. Stand-
ley’s. Id. at 36–37, 40.
In November 2014, Mr. Standley filed a grievance
with the DOE regarding his non-selection for the Director
position, which was denied. Standley,
2017 WL 56181, at
¶ 3; Resp’t’s App. 36−37. In February 2015, Mr. Standley
then filed a complaint with the Office of Special Counsel
(“OSC”), alleging he was not allowed to compete for the
Director position. See Standley,
2017 WL 56181, at ¶ 4.
However, the OSC investigated, terminated, and closed
Mr. Standley’s file without taking action in September
2015, notifying him of his right to appeal to the MSPB.
See id.; Resp’t’s App. 41, 83–84.
Mr. Standley timely filed an IRA appeal with the
MSPB, alleging, inter alia, that the DOE retaliated
space. See Standley,
2017 WL 56181, at ¶ 2; Resp’t’s App.
33.
4 STANDLEY v. MERIT SYS. PROT. BD.
against him, thereby violating
5 U.S.C. § 2302(b)(8)(A)
and (b)(9)(D) of the Whistleblower Protection Act (“WPA”),
Pub. L. No. 101-12,
103 Stat. 16 (1989) (codified as
amended by Whistleblower Protection Enhancement Act
of 2012 (“WPEA”), Pub. L. No. 112–199,
126 Stat. 1465 in
scattered sections of 5 U.S.C.). 2 Resp’t’s App. 14, 33.
Specifically, Mr. Standley alleged that: he “disclosed the
need to implement SABRS3” and “refus[ed] to participate
in [his supervisor’s] plan to cancel SABRS3” because the
program was necessary to comply with § 1065 of the
National Defense Authorization Act of 2008 (“2008
NDAA”), 3 id. at 18, 61; and those disclosures directly
2 Section 2302(b) provides in relevant part that:
Any employee who has authority to take, direct
others to take, recommend, or approve any per-
sonnel action, shall not, with respect to such au-
thority— . . . (8) take or fail to take, or threaten to
take or fail to take, a personnel action with re-
spect to any employee or applicant for employ-
ment because of—(A) any disclosure of
information by an employee or applicant which
the employee or applicant reasonably believes evi-
dences—(i) any violation of any law, rule, or regu-
lation, or (ii) . . . a substantial and specific danger
to public health or safety . . . .
5 U.S.C. § 2302(b) (emphases added). Section
2302(b)(9)(D) protects employees who “refuse[] to obey an
order that would require the individual to violate a law,
rule, or regulation.”
Id. § 2302(b)(9)(D).
3 Section 1065 of the 2008 NDAA provides, in its
entirety, that “[t]he Secretary of Defense shall maintain
the capability for space-based nuclear detection at a level
that meets or exceeds the level of capability as of the date
of the enactment of this Act.” Pub. L. No. 110-181, § 1065,
122 Stat. 3, 324 (2008).
STANDLEY v. MERIT SYS. PROT. BD. 5
contributed to his supervisor “conspir[ing] to frustrate
[his] attempts to compete for” the Director position, id. at
18 (internal quotation marks and citation omitted). In its
initial decision, the AJ dismissed the appeal for lack of
jurisdiction because Mr. Standley “failed to make a non-
frivolous allegation that he made a protected disclosure
under
5 U.S.C. § 2302(b)(8)[(A)].” Id. at 17. Specifically,
the AJ found that Mr. Standley’s asserted disclosures
pertained to “a policy decision” rather than a protected
disclosure. Id. at 18. Further, the AJ rejected Mr. Stand-
ley’s § 2302(b)(9)(D) claim because Mr. Standley failed to
produce evidence that he was retaliated against for refus-
ing to obey an order that would require him to violate the
2008 NDAA. Id.
On petition for review, the MSPB issued a final deci-
sion affirming the AJ’s dismissal for lack of jurisdiction.
See Standley,
2017 WL 56181, at ¶ 1. The MSPB deter-
mined that Mr. Standley failed to make a non-frivolous
allegation that the matter he disclosed was one that a
reasonable person in his position would believe evidenced
any of the protected disclosures under § 2302(b)(8)(A)
given the Secretary of the DOD, not employees of the
DOE, is responsible for maintaining the “capability for
space-based nuclear detection.” Id. at ¶ 11 (quoting 2008
NDAA § 1065). Among other things, the MSPB noted
that § 1065 of the 2008 NDAA does not limit the DOD to
“any particular device or system to maintain space-based
nuclear detection capability,” so it would not be objective-
ly reasonable that defunding SABRS3 evidenced a “viola-
tion of law.” Id. The MSPB also determined that Mr.
Standley failed to “substantiate[] his [§ 2302(b)(9)(D)]
allegation that the agency retaliated against him for his
opposing the discontinuation of the SABRS3 program.”
Id. at ¶ 15.
6 STANDLEY v. MERIT SYS. PROT. BD.
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). “[A]lthough we may review freely” the
MSPB’s jurisdictional conclusions, “we are bound by the
AJ’s factual determinations unless those findings are not
supported by substantial evidence.” Bolton v. Merit Sys.
Prot. Bd.,
154 F.3d 1313, 1316 (Fed. Cir. 1998). “The
petitioner bears the burden of establishing error in the
[MSPB]’s decision.” Harris v. 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 whistle blowing activi-
ties.
5 U.S.C. § 1221(a) (“Subject to the provisions of
subsection (b) of this section and subsection 1214(a)(3), an
employee . . . may, with respect to any personnel action
taken . . . as a result of a prohibited personnel practice
described in [§] 2302(b)(8) or [§] 2302(b)(9) . . . seek cor-
rective action from the [MSPB].”). The MSPB has juris-
diction over whistleblower cases “if the [petitioner] has
exhausted his administrative remedies before the OSC
and makes non-frivolous allegations that (1) he engaged
in whistleblowing activity by making a protected disclo-
sure under
5 U.S.C. § 2302(b)(8),” or engaged in other
protected activity as specified in
5 U.S.C. § 2302(b)(9);
and “(2) the disclosure was a contributing factor in the
agency’s decision to take or fail to take a personnel action
as defined by
5 U.S.C. § 2302(a)(2)[(A)].” Yunus v. Dep’t of
Veterans Affairs,
242 F.3d 1367, 1371 (Fed. Cir. 2001)
(internal quotation marks omitted); see Hicks v. Merit Sys.
Prot. Bd.,
819 F.3d 1318, 1320 (Fed. Cir. 2016) (explaining
that the WPEA expanded the IRA appeal right to include,
inter alia, prohibited practices under § 2302(b)(9)(D)).
STANDLEY v. MERIT SYS. PROT. BD. 7
“[A] communication concerning policy decisions that
lawfully exercise discretionary authority” is not a protect-
ed whistleblower disclosure, unless the employee provid-
ing the disclosure reasonably believes that the disclosure
evidences a “violation of any law, rule, or regulation,” or
“a substantial and specific danger to public health or
safety.”
5 U.S.C. § 2302(a)(2)(D); see Lachance v. White,
174 F.3d 1378, 1381 (Fed. Cir. 1999) (“The WPA is not a
weapon in arguments over policy . . . .”); O’Donnell v.
Dep’t of Agric.,
120 M.S.P.R. 94, at ¶ 14 (2013), aff’d sub
nom. O’Donnell v. Merit Sys. Prot. Bd., 561 F. App’x 926
(Fed. Cir. 2014) (dismissing an IRA appeal where disclo-
sures consisted of a “fairly debatable policy dispute”). The
test to determine if a petitioner had a reasonable belief
that his disclosure evidenced wrongdoing asks whether a
“disinterested observer with knowledge of the essential
facts known to and readily ascertainable by the employee
[could] reasonably conclude that the actions of the
[G]overnment evidence[d]” such wrongdoing. Lachance,
174 F.3d at 1381.
II. The MSPB Lacks Jurisdiction over Mr. Standley’s
Appeal
The main issue on appeal is whether the MSPB erred
in concluding that it lacked jurisdiction to consider Mr.
Standley’s IRA appeal because he failed to non-frivolously
allege violations of the WPA. 4 Specifically, the parties
dispute whether Mr. Standley’s alleged disclosures qualify
for protection under § 2302(b)(8)(A) or (b)(9)(D). See
Pet’r’s Br. 3; Resp’t’s Br. 10–11. 5
4 On appeal, the parties do not contest that Mr.
Standley has exhausted his OSC remedies. See generally
Pet’r’s Br.; Resp’t’s Br.
5 Mr. Standley also argues on appeal that adverse
retaliatory actions stemmed from those disclosures,
8 STANDLEY v. MERIT SYS. PROT. BD.
Mr. Standley argues that his disclosures were pro-
tected under the WPA because he reasonably believed
that: (1) he disclosed and refused to obey an action,
namely, his supervisor’s decision not to fund SABRS3,
which he reasonably believed violated § 1065, and funding
the SABRS3 program was not a public policy matter,
Pet’r’s Br. 2; see id. at 6–8; and (2) this action was a
“danger to public health and safety” because of “the
potential loss of our government’s ability to detect nuclear
detonations,” id. at 3. We disagree.
Mr. Standley’s allegations amount to a policy dispute,
and the record demonstrates that a disinterested observer
could not reasonably believe Mr. Standley’s disclosures
evidenced either a violation of law or a danger to public
health and safety. As an initial matter, decisions related
to the development of the nuclear detonation program in
space fit within the exception to disclosures for “policy
decisions that lawfully exercise discretionary authority.”
5 U.S.C. § 2302(a)(2)(D); see O’Donnell, 561 F. App’x at
930 (“[A]n exercise of discretionary authority is not a
‘violation of the law.’”). As the MSPB found, the record
shows that decisions related to SABRS3 were committed
to an interagency discretionary review process and not to
any particular individual acting alone, let alone an em-
ployee of the DOE. See Standley,
2017 WL 56181, at
¶¶ 11, 13 (describing the interagency process of decision
making).
Mr. Standley contends that his disclosure is neverthe-
less protected because an observer would have a reasona-
namely, his failure to obtain an interview for a promotion
and his lower performance rating. Pet’r’s Br. 4; see
id. at
17–18. Because we find that Mr. Standley failed to
demonstrate that his disclosures were statutorily-
protected, we need not consider whether these actions
constitute retaliation under the WPA.
STANDLEY v. MERIT SYS. PROT. BD. 9
ble belief that it evidenced a violation of § 1065 of the
2008 NDAA. That section places responsibility for space-
based nuclear detection on the Secretary of the DOD, not
the DOE or its employees. See 2008 NDAA § 1065. The
parties agree that the DOE provides support related to
such space-based nuclear detonation detection. See Pet’r’s
Br. 7, 12; Resp’t’s Br. 12–14. However, as we stated
above, neither the NDD nor NNSA are statutorily bound
by the directives of the 2008 NDAA. Any pronouncements
or decisions made by members of the NDD and NNSA
would amount to policy considerations taken to aid the
Secretary of the DOD, with whom ultimate legal authori-
ty rests.
Moreover, § 1065 does not prescribe any particular
means or technology by which space-based nuclear detec-
tion capabilities must be maintained. See 2008 NDAA
§ 1065. Rather, it is only violated if detection capability
falls below a pre-set standard, and a National Security
Council (“NSC”) interagency policy committee has the
discretion to decide how best to maintain that standard.
See Resp’t’s App. 38. Mr. Standley alleges that “[his
supervisor’s] actions violated [the law]” by calling for an
NSC interagency policy committee meeting to recommend
ceasing funding SABRS3. See Pet’r’s Br. 2. However, Mr.
Standley has already conceded, and the MSPB found as
instructive, that other senior policy makers in the U.S.
Air Force and U.S. Strategic Command opposed funding
SABRS3 as well. Standley,
2017 WL 56181, at ¶ 11
(referencing Resp’t’s App. 44 (alleging a “particular group
in [the interagency committee] . . . would prefer that the
SABRS program be terminated”)). A disinterested ob-
server 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.
10 STANDLEY v. MERIT SYS. PROT. BD.
Finally, for many of the same reasons expressed
above, we find that a disinterested observer could not
reasonably believe that Mr. Standley’s report to his
supervisor regarding funding for SABRS3 evidences a
danger to public health or safety. “[T]he disclosure of a
danger only potentially arising in the future is not a
protected disclosure” if it is not “substantial and specific.”
Chambers v. Dep’t of Interior,
515 F.3d 1362, 1369 (Fed.
Cir. 2008) (citations omitted). Chambers lays out a num-
ber of factors to consider in determining whether a disclo-
sure is sufficiently substantial and specific to warrant
protection, including “likelihood of harm,” “speculative or
improbable conditions,” and “specificity of the alleged
danger.”
Id. at 1369. The MSPB weighed these factors
and found that, while degradation in capability to detect
nuclear blasts in space could affect public health and
safety, Mr. Standley had not alleged quantifiable poten-
tial harm or likelihood of harm and, therefore, did not
meet his burden to show “that such an occurrence is more
than a possibility occurring at an undefined point in the
future.” Standley,
2017 WL 56181, at ¶ 12 (footnote
omitted). Mr. Standley has not challenged these findings
on appeal. See generally Pet’r’s Br. We see no error in the
MSPB’s analysis. Thus, Mr. Standley has failed to make
a non-frivolous allegation that his statements are protect-
ed by the WPA or that the MSPB improperly dismissed
his appeal for lack of jurisdiction.
CONCLUSION
We have considered Mr. Standley’s remaining argu-
ments relating to lack of jurisdiction and find them un-
persuasive. Accordingly, the Final Order of the Merit
Systems Protection Board is
AFFIRMED
COSTS
Each party shall bear its own costs.
