NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

CHRISTOPHER R. CHIN-YOUNG,

Petitioner

v.

DEPARTMENT OF THE ARMY,

Respondent

______________________ 

2023-1510

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DC-0752-15-1030-l-1.

______________________ 

Decided: September 20, 2023

______________________ 

CHRISTOPHER CHIN-YOUNG, Tallahassee, FL, pro se.

 YARIV S. PIERCE, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BRIAN M.

BOYNTON, PATRICIA M. MCCARTHY, DOUGLAS K. MICKLE. 

______________________ 

Before PROST, HUGHES, AND STOLL, Circuit Judges.

PER CURIAM. 

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2 CHIN-YOUNG v. ARMY

Mr. Christopher Chin-Young appeals a decision of the 

Merit Systems Protection Board (Board) denying his petition for review of the administrative judge’s decision to sustain his removal. Because the Board correctly found it did 

not have jurisdiction to decide the merits of Mr. ChinYoung’s detail to another directorate preceding his removal, and because the Board did not err in denying Mr. 

Chin-Young’s claims of whistleblower retaliation, return 

rights, or harmful procedural error, we affirm. 

I 

In 2013, Mr. Chin-Young was employed as the Deputy 

Director (Supervisory Program Analyst) for the Chief Integration Office (CXO) Directorate in the Office of the Army 

Chief Information Officer (Agency). In 2014, the Agency 

“began plans to reorganize and dissolve the CXO Directorate.” S.A. 2.1 At this point, Mr. Chin-Young was detailed 

to work in the Cyber Security Directorate instead. 

In April 2014, Mr. Chin-Young left his detail and prepared for deployment to Afghanistan, where he was to 

serve in a civilian capacity for a one-year tour through the 

Ministry of Defense Advisors (MoDA) program. He arrived 

in Afghanistan around July 3, 2014. Soon after his arrival, 

Mr. Chin-Young submitted a complaint to the Special Inspector General for Afghanistan Reconstruction (SIGAR)

reporting allegations of fraud, waste, and abuse of funds. 

After Mr. Chin-Young had served only six weeks abroad, 

the Senior Telecommunications Advisor working with Mr. 

Chin-Young in Afghanistan recommended that Mr. ChinYoung be immediately redeployed because he had “demonstrated an inability to adjust . . .[,] caused Senior Leaders 

to question his ability . . ., and [was] a negative influence 

to other team members.” S.A. 119.

1 “S.A.” refers to the supplemental appendix the government filed with its responsive brief. 

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CHIN-YOUNG v. ARMY 3

Due to this recommendation, roughly two months after 

arriving in Afghanistan, Mr. Chin-Young returned to the 

United States. On September 8, 2014, he sent an email to 

his former supervisor in the Cyber Security Directorate informing him that he was returning from his MoDA position 

in Afghanistan and would be taking sick and administrative leave for a few weeks before returning to work. 

On November 3, 2014, Mr. Chin-Young was issued an 

official memorandum informing him that his new detail 

would be with the Cyber Security Directorate in the Program Integration and Training Division at the Pentagon.

He also received an email from the Chief of Human Resources informing him that his supervisor for this detail 

position would be Ms. Autumn Aquinaldo. His grade and 

pay in this detail were the same as the grade and pay he 

had received when he was at the CXO Directorate and remained the same until his removal. 

After reporting to his new Cyber Security Directorate 

detail only one time (on December 17, 2014), Mr. ChinYoung “effectively declined the detail and refused to report 

for work.” S.A. 3 (citing S.A. 38). Instead, he maintained 

that he was working remotely in his former capacity at the 

CXO Directorate. He was reminded on numerous occasions 

by his then-supervisor (Ms. Aquinaldo), his former supervisor (Mr. Lundgren), the Director of Cybersecurity 

(Ms. Miller), and the Deputy Chief Information Officer 

(Mr. Wang) that he was currently detailed to the Pentagon 

Cyber Security Directorate and was required to appear at 

his workstation at the Pentagon. Still, he argued that his 

detail was improper, Ms. Aquinaldo was his subordinate 

(not his supervisor), and he was entitled to keep working 

at the CXO Directorate. Other than four hours on December 17, 2014, Mr. Chin-Young never reported to work at his 

new detail in the Cyber Security Directorate. 

On May 29, 2015, the Agency issued Mr. Chin-Young a 

memorandum proposing his removal from the federal 

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4 CHIN-YOUNG v. ARMY

service for misconduct. The Agency based his removal on 

five charges: (1) Absence without Leave (AWOL), (2) Failure to Comply with Leave Procedures, (3) Failure to Follow 

Instructions, (4) Insolence, and (5) Lack of Candor. 

Mr. Chin-Young submitted a written response to the 

memo. But despite being given an opportunity to review 

the evidence supporting his removal, the Agency found he 

did not do so. On July 24, 2015, the Agency deciding official 

sustained all charges and specifications in the May 29, 

2015 memorandum. The Agency removed Mr. Chin-Young 

from service effective July 31, 2015. 

II

Mr. Chin-Young filed an appeal with the Board challenging his removal and raising affirmative defenses, including retaliation, whistleblower reprisal, and harmful 

procedural error. After a four-day hearing, an administrative judge issued a 76-page initial decision which held that 

the Agency had proved all charges for Mr. Chin-Young’s removal and that Mr. Chin-Young had failed to prove his affirmative defenses. The Board affirmed that decision, with 

a few modifications, on January 13, 2023. 

Mr. Chin-Young now appeals the Board’s decision.2 We 

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

III

We review Board decisions for whether they are “(1) arbitrary, capricious, an abuse of discretion, or otherwise not 

2 Mr. Chin-Young subsequently filed five other appeals with this court that are not decided here. Chin-Young 

v. Dep’t of the Army, No. 23-1587 (Fed. Cir.); Chin-Young v. 

Dep’t of the Army, No. 23-1588 (Fed. Cir.); Chin-Young v. 

Merit Sys. Prot. Bd., No. 23-1589 (Fed. Cir.); Chin-Young v. 

Merit Sys. Prot. Bd., No. 23-1590 (Fed. Cir.); Chin-Young v. 

Dep’t of the Army, No. 23-1595 (Fed. Cir.).

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CHIN-YOUNG v. ARMY 5

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). We review legal conclusions de novo and factual 

findings for substantial evidence. Salmon v. Soc. Sec. Admin., 663 F.3d 1378, 1381 (Fed. Cir. 2011); Moravec v. Off. 

of Pers. Mgmt., 393 F.3d 1263, 1266 (Fed. Cir. 2004). 

Whether the Board has jurisdiction over an appeal is a 

question of law we review de novo. Coradeschi v. Dep’t of 

Homeland Sec., 439 F.3d 1329, 1331 (Fed. Cir. 2006). Although pro se pleadings are generally held to less stringent 

standards than pleadings drafted by counsel, pro se litigants still bear the burden of establishing jurisdiction over 

their claims. Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885, 

886 (Fed. Cir. 1998). 

IV

On appeal, Mr. Chin-Young identifies four instances he 

believes to be reversible error. In particular, he argues that 

(1) his removal was improper because it was based solely 

on an “illegitimate” detail to the Cyber Security Directorate, (2) the Board erred by not finding whistleblower retaliation, (3) the Board erred by not addressing his 

argument that he had the right to return to his job at the 

CXO Directorate, and (4) it was harmful procedural error 

for the Agency not to send him the evidence it relied on in 

deciding to remove him. We affirm the Board’s decision. 

A 

We start with Mr. Chin-Young’s argument that his detail to the Cyber Security Directorate was “illegitimate,” 

and that he therefore was not required to report to work at 

this detail. Informal Op. Br. at 18. We agree with the Board 

that such an argument goes to the merits of the Agency’s 

decision to detail him, and thus does not fall within the 

Board’s jurisdiction. 

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6 CHIN-YOUNG v. ARMY

The Board does not have jurisdiction over the merits of 

an Agency’s reassignment or detail if that employment action does not result in the loss of grade or pay for that employee. Artmann v. Dep’t of the Interior, 926 F.2d 1120, 

1122 (Fed. Cir. 1991). This is true even if the reassignment 

or detail “reduces the employee’s status, duties, or responsibilities.” Id.3 Here, Mr. Chin-Young debates the legality 

of his detail to the Cyber Security Directorate. But the fact 

that he did not suffer a loss in grade or pay as a result of 

that detail is supported by substantial evidence. Indeed, 

his removal papers from 2015 reflect that he had the same 

GS-15 grade and pay when he was removed from the 

Agency. Thus, whether the Agency’s decision to detail him 

to the Cyber Security Directorate was unlawful is not a 

question for the Board because the detail itself was not an 

adverse action. 

Moreover, Mr. Chin-Young was not entitled to unilaterally refuse to report to his detail even if he believed it to 

be illegitimate. Rather, an employee who is reassigned to 

different job duties and who questions the legal basis for 

that reassignment “must perform his assigned job duties 

and then petition for relief through the appropriate grievance proceedings.” Hamlin v. U.S. Postal Serv., 1998 WL 

887041, at *2 (Fed. Cir. Dec. 15, 1998); accord Bigelow v. 

Dep’t of Health & Human Servs., 750 F.2d 962, 965–66 

(Fed. Cir. 1984). We need not reach the merits of Mr. ChinYoung’s detail here because, even if it were somehow improper, he still would have been required to report to work

and protest the legality of the detail while doing so. 

3 Although there are limited exceptions to this general rule, such as for “constructive demotion” when an employee’s prior job title should have been reclassified at a 

higher pay grade, it is unclear how such an exception would 

apply here. 

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CHIN-YOUNG v. ARMY 7

Mr. Chin-Young’s arguments can also be read as arguments that his detail never happened at all. We are similarly unpersuaded by this argument. Substantial evidence 

supports the Board’s conclusion that Mr. Chin-Young was 

detailed from his role at the CXO Directorate to the Cyber 

Security Directorate. For example, the record supports the 

Board’s findings that the Agency had begun to phase out 

the CXO Directorate in 2014 (S.A. 216–24); Mr. ChinYoung had already been detailed to the Cyber Security Directorate before his deployment to Afghanistan (S.A. 486–

93); when he returned from Afghanistan, Mr. Chin-Young 

emailed his former supervisor at the Cyber Security Directorate that he would be returning to work (S.A. 123); and 

the Chief of Human Resources notified Mr. Chin-Young of 

his new detail to the Cyber Security Directorate in writing 

upon his return to the United States (S.A. 133, 148–52). 

The record also includes numerous emails where his colleagues questioned why he was not at his detail at the 

Cyber Security Directorate. E.g., S.A. 37, 45, 48–49, 127–

30, 139, 144–45, 153–60. 

Mr. Chin-Young’s argument that he was not detailed to 

the Cyber Security Directorate rests on his belief that he 

had never been released from his MoDA assignment when 

he returned early from Afghanistan, and so the Agency 

could not have detailed him to a different position. But the 

administrative judge found Mr. Chin-Young’s testimony on 

this point to be unreliable and inconsistent with the emails 

he sent around that time. Rather, she credited the Agency’s 

witnesses’ testimony and the August 28, 2014 “Letter of 

Release for Redeployment” as proof that Mr. Chin-Young 

had been formally released from the MoDA assignment. 

S.A. 35–36 (referring to S.A. 121). Mr. Chin-Young argues 

that this letter does not establish a formal release and is 

just a travel authorization document. But substantial evidence supports the administrative judge’s and Board’s contrary findings. In particular, the document states an 

“[e]ffective date of release” of “29 August 2014” and 

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8 CHIN-YOUNG v. ARMY

explicitly provides that Mr. Chin-Young “will not be returning.” S.A. 121. This, paired with a lack of evidence suggesting that something more was required to release him from 

the MoDA assignment, and considering Mr. Chin-Young’s 

own email to his former supervisor letting him know that 

he was available to restart his work in the United States, 

constitutes substantial evidence that he was, in fact, released from the MoDA assignment. 

Given the above, there is substantial evidence to support the Board’s finding that Mr. Chin-Young was detailed 

to the Cyber Security Directorate. And whether this detail 

was legally improper is beyond the Board’s jurisdiction because it did not result in a loss of grade or pay. 

B 

Next, we address Mr. Chin-Young’s argument that he 

was removed from service because of unlawful whistleblower retaliation. We hold that the Board did not err by 

concluding there was no whistleblower retaliation in 

Mr. Chin-Young’s case. 

To establish a claim for whistleblower retaliation, an 

employee must prove by a preponderance of the evidence 

that (1) the employee made a protected disclosure under 

5 U.S.C. § 2302(b)(8), (2) they were subject to an adverse 

personnel action, and (3) the protected disclosure was a 

contributing factor to the adverse personnel action. Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 

2008). If the employee provides that proof, then the burden 

of persuasion shifts to the agency to show by clear and convincing evidence that it would have taken the same personnel action even without the protected disclosure. Whitmore

v. Dep’t of Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012). We 

consider the Carr factors in assessing whether an agency 

has satisfied its clear and convincing evidence burden: 

(1) “the strength of the agency’s evidence in support of its 

personnel action”; (2) “the existence and strength of any 

motive to retaliate on the part of the agency officials who 

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CHIN-YOUNG v. ARMY 9

were involved in the decision”; and (3) “any evidence that 

the agency takes similar actions against employees who 

are not whistleblowers but who are otherwise similarly situated.” Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed. 

Cir. 1999). 

Here, the Board concluded that Mr. Chin-Young made 

a protected disclosure under § 2302(b)(8) when he filed his 

SIGAR complaint while in Afghanistan in 2014, in which 

he alleged fraud, waste, and abuse of funds. The Board also 

concluded that the officials who proposed or decided to remove Mr. Chin-Young had knowledge of that complaint, 

and so it was theoretically possible that the SIGAR complaint was a contributing factor in their removal decision. 

However, the Board went on to consider the Carr factors 

and concluded that the Agency would have removed Mr. 

Chin-Young regardless of that SIGAR complaint. In particular, the Board pointed to the administrative judge’s decision to sustain the charges of AWOL, failure to follow leave 

procedures, failure to follow instructions, insolence, and 

lack of candor because of the abundant evidence that Mr. 

Chin-Young unilaterally rejected his detail orders and did 

not report to work. 

We agree with the Board. Because the legitimate reasons for Mr. Chin-Young’s removal were so compelling

here, the Board’s conclusion that he would have been removed regardless of the SIGAR complaint is supported by 

substantial evidence. Moreover, the Board properly considered the Carr factors in its analysis and we discern no legal 

error.4 

4 Although the government agrees with the Board’s 

conclusion that there was no whistleblower retaliation, it 

argues before us that the Board erred in finding that the 

SIGAR complaint was a protected disclosure in the first 

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10 CHIN-YOUNG v. ARMY

On appeal, Mr. Chin-Young speculates about various 

sources of retaliatory animus that he argues should lead to 

reversal. None of these theories lead us to a different outcome. For example, Mr. Chin-Young claims that we should 

apply the “[c]at’s [p]aw theory of law”5 because (1) his former supervisor, Mr. Krieger, was the one who informed the 

new Director of the Cyber Security Directorate, Mr. Wang, 

that Mr. Chin-Young’s position at the CXO Directorate was 

“abolished,” and (2) Mr. Krieger’s reason for doing so was 

to “get[] back at the Appellant for not containing [a] class 

action complaint” against Mr. Krieger. Informal Op. Br. at 

13. As another example, Mr. Chin-Young argues that a 

memorandum written by a colleague in Afghanistan, 

Dr. Warner, recommending his deployment back to the 

United States was improperly considered by the official 

who issued his proposal for removal and “inflame[d]” that 

official’s “retaliatory animus.” Informal Op. Br. at 16. But 

these speculative arguments are disagreements on issues 

of fact and are not supported by the record. 

Mr. Chin-Young also references alleged protected disclosures other than his SIGAR complaint, including his vocal opposition to the Agency’s hiring of other employees. 

The administrative judge addressed most of these other alleged protected disclosures and found that they could not 

have been motivating factors in his removal because the 

removing officials were not aware of the disclosures. These 

conclusions are supported by substantial evidence because

Mr. Chin-Young did not provide evidence that these other 

place. We need not reach this issue because we agree with 

the Board’s analysis on the Carr factors.

5 A “cat’s paw” issue arises in the context of a deciding official being improperly influenced by someone with 

animus. See, e.g., King v. Dep’t of Army, 602 F. App’x 812, 

815 n.1 (Fed. Cir. 2015) (citing Staub v. Proctor Hosp., 562 

U.S. 411 (2011)). 

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CHIN-YOUNG v. ARMY 11

alleged disclosures were provided to the removing officials. 

But even if they were protected disclosures, the Agency 

would succeed on the Carr factors for the same reason as 

with respect to the SIGAR complaint: the record provides 

substantial evidence that the Agency would have removed 

Mr. Chin-Young regardless. As explained above, the record 

is replete with evidence that Mr. Chin-Young refused to 

show up to his detail position at the Cyber Security Directorate and instead unilaterally re-appointed himself to a 

position at the CXO Directorate that no longer existed. 

Thus, the government has met its burden of persuasion on 

the Carr factors because of these strong, legitimate reasons 

for Mr. Chin-Young’s removal. 

Finally, to the extent Mr. Chin-Young argues retaliation based on his Equal Employment Opportunity (EEO) 

activity, these issues are not properly before us. As Mr. 

Chin-Young himself acknowledges, although he “raised 

claims of discrimination and retaliation based on his race 

and prior protected EEO activities . . . discrimination is not 

a part of this appeal.” Informal Op. Br. at 7. 

For these reasons, we affirm the Board’s conclusion 

that Mr. Chin-Young’s removal was not a result of retaliation for protected whistleblowing activity. 

C 

We turn next to Mr. Chin-Young’s argument that the 

Board erred because it did not address his argument that 

he had the right to return to his job at the CXO Directorate

under 10 U.S.C. § 1586, a statute that gives those deployed 

abroad a right to return to their positions in the United 

States once they have successfully completed their tour. 

We find no error with the Board’s conclusion that Mr. ChinYoung did not establish a claim under § 1586 because substantial evidence supports its finding that Mr. Chin-Young 

retained his position of record until removed from service. 

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12 CHIN-YOUNG v. ARMY

Mr. Chin-Young argues that it was error for the Board 

not to consider his arguments under § 1586. But even 

though the Board found his § 1586 arguments to be forfeited, it also held that Mr. Chin-Young had not established 

a claim under § 1586 because “[r]egardless [of whether the 

arguments were forfeited], the record reflects that the appellant’s position of record remained the same.” S.A. 18 

(emphasis added). Thus, the Board did consider the merits 

of this argument, even though it found it to be forfeited. For 

this reason, Mr. Chin-Young’s argument that the Board 

erred in not considering the argument is unpersuasive. 

We are also unpersuaded as to the merits of Mr. ChinYoung’s return-rights argument. Section 1586 entitles an 

employee who has been assigned to a position abroad to return “without reduction in the seniority, status, and tenure 

held by the employee immediately before his assignment to 

duty outside the United States.” 10 U.S.C. § 1586(c). If the 

employee’s former position no longer exists, however, the 

statute provides that the employee can be placed in a different position so long as they retain “rights and benefits 

equal to the rights and benefits of, and in a grade equal to 

the grade of, the position which he held immediately before 

his assignment to duty outside the United States.” Id. 

§ 1586(c)(2). Here, the Board’s finding that Mr. ChinYoung retained his position of record until his removal is 

supported by substantial evidence—his removal documents show that he maintained the same grade and pay up 

until he was removed. The Board’s finding that the CXO 

Directorate was effectively dissolved is also supported by 

substantial evidence, including testimony that the administrative judge appeared to find credible. S.A. 33 (citing the 

consistent testimonies by the Chief Information Officer, 

the Deputy Chief Information Officer, and the Chief of Human Resources). Given these facts, Mr. Chin-Young has not 

established a violation of his return rights under § 1586. 

Mr. Chin-Young has also failed to show that the Agency 

violated § 1586 for a separate, independent reason: the 

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CHIN-YOUNG v. ARMY 13

statute applies only to employees “who satisfactorily complete[]” their duty abroad. 10 U.S.C. § 1586(b)(2). Here, 

Mr. Chin-Young has not shown that he satisfactorily completed his duties in Afghanistan. To the contrary, the evidence of record shows that he came back to the United 

States ten months early and that at least one other employee in Afghanistan recommended that he be sent back 

because of unsatisfactory work. 

For these reasons, Mr. Chin-Young has not shown that 

the Agency violated § 1586, nor that the Board erred in 

handling its argument to that effect. 

D

Finally, we address Mr. Chin-Young’s argument that 

the Agency committed harmful procedural error by not 

making accessible the evidence it relied on in deciding to 

remove him. This argument is contrary to the substantial 

evidence of record, and the Board did not err by concluding

that offering to make the materials available upon request 

was not a harmful procedural error. 

We have previously held that there is no harmful procedural error where an agency has provided an employee 

with access to the documents it relied upon in making its 

removal decision, even if the type of access granted was inconvenient. Novotny v. Dep’t of Transp., 735 F.2d 521, 523 

(Fed. Cir. 1984); see also Harding v. U.S. Naval Acad., 567 

F. App’x 920, 925 (Fed. Cir. 2014) (“[P]roviding access to 

the materials the agency relied upon to support the removal action was sufficient to satisfy any possible due process concerns.”); Charity v. Gen. Servs. Admin., 180 F. 

App’x 952, 954 (Fed. Cir. 2006) (concluding there was no 

harmful procedural error where “the record showed that 

the agency offered [the employee] access to the evidence 

it relied on in its charges but that there was no showing 

that [the employee] requested and was denied such access”). 

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14 CHIN-YOUNG v. ARMY

Here, substantial evidence supports the Board’s conclusion that the Agency made the evidence accessible to 

Mr. Chin-Young by offering it for inspection upon request. 

E.g., S.A. 181–82 (Notice of Proposed Removal informing 

Mr. Chin-Young that he had the right to reply to the notice

and “to review the material relied upon in this matter,” by 

contacting a Human Resource Specialist whose contact information was provided). And while Mr. Chin-Young implies that he tried to access the documents but was refused 

access, this allegation is not supported by the record. As 

the administrative judge explained in her decision, the only 

evidence that Mr. Chin-Young tried to access these documents was his own testimony, and the administrative 

judge did not find that testimony credible. S.A. 89 n.33. In 

contrast, the other testimony—which the administrative 

judge did find credible—and the email evidence on this 

point show (1) that Mr. Chin-Young was informed he 

needed to contact the Human Resource Specialist to access 

the evidence supporting his removal and (2) that he did not 

request those documents. Thus, there is substantial evidence that the Agency made the materials accessible to Mr. 

Chin-Young and that Mr. Chin-Young was not denied access. 

Like in Charity, this type of access is sufficient to meet 

the Agency’s procedural burden. 180 F. App’x at 955. Thus, 

the Board properly applied our prior decisions in holding 

that there was no harmful procedural error. 

V 

We have considered the remainder of Mr. Chin-Young’s 

arguments and find them unpersuasive. Thus, we affirm 

the Board’s decision denying Mr. Chin-Young’s petition for 

review of the initial decision that sustained his removal.

AFFIRMED

COSTS

No costs. 

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