NOTE: This disposition is nonprecedential.

United States Court of Appeals

for the Federal Circuit

______________________ 

KEVIN AUBART,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2021-2190

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. SF-1221-20-0520-W-1.

______________________ 

Decided: January 18, 2022

______________________ 

KEVIN AUBART, Honolulu, HI, pro se. 

JEFFREY GAUGER, Office of General Counsel, United 

States Merit Systems Protection Board, Washington, DC, 

for respondent. Also represented by TRISTAN L. 

LEAVITT, KATHERINE MICHELLE SMITH. 

 ______________________ 

Before MOORE, Chief Judge, PROST and TARANTO, Circuit

Judges. 

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2 AUBART v. MSPB

PER CURIAM. 

Kevin Aubart filed an Individual Right of Action (IRA) 

appeal with the Merit Systems Protection Board, alleging 

that his employer, the U.S. Department of the Army, engaged in prohibited retaliation for his whistleblowing. Specifically, he asserted that the Army created a hostile work 

environment and proposed to remove him in retaliation for 

disclosing that three Army employees made materially 

false statements in various official proceedings. The Board 

dismissed the challenge, concluding that Mr. Aubart failed 

to nonfrivolously allege a disclosure protected under the 

Whistleblower Protection Act (WPA). Supplemental Appendix (SAppx) 1–20; see also Aubart v. Dep’t of the Army, 

No. SF-1221-20-0520-W-1, 2020 WL 6269161 (M.S.P.B. 

Oct. 23, 2020). Mr. Aubart appeals. We affirm.

I 

When the events in question began, Mr. Aubart worked 

as a Supervisory Information Technology Specialist for the 

Army’s Regional Cyber Center-Pacific (RCC-P) group, 

which was located at Fort Shafter, Hawaii. On February 

10, 2017, Lieutenant Colonel Christopher Siegrist, the director of the RCC-P group, sent Mr. Aubart and his coworkers a memorandum under the subject heading “Temporary Duty Relocation” (Siegrist Memorandum), which 

stated in pertinent part:

1. This memorandum is to inform you of a temporary change in your duty station from the Regional 

Cyber Center Pacific (RCC-P), Fort Shafter, Hawaii to BLDG 1500 Schofield Barracks effective 

February 18, 2017.

2. The RCC-P will undergo major renovations 

within the office and building. As a result, you will 

be temporarily reassigned to BLDG 1500 Schofield 

Barracks, where you will continue to perform the 

same essential job functions that you now perform. 

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AUBART v. MSPB 3

We anticipate the completion in 14 weeks and will 

provide you sufficient notice in returning to Fort 

Shafter. 

3. If you have questions or concerns about this temporary relocation, please address them to . . . . 

SAppx 43. On February 18, 2017, the RCC-P group’s work 

began at Schofield, a separate Army base 19.1 miles from 

Fort Shafter. But despite Lt. Col. Siegrist’s original forecast of fourteen weeks for the renovation, the RCC-P group 

worked at Schofield for more than thirty-eight weeks, until

November 14, 2017. During that time, the RCC-P employees’ job duties at Schofield were essentially the same as 

what they had been at Fort Shafter. 

In response to the transfer to Schofield, Mr. Aubart and 

other RCC-P employees requested per diem mileage reimbursement for their additional commuting expenses, but 

Lt. Col. Siegrist denied those requests. Mr. Aubart then 

filed an appeal with the United States Civilian Board of 

Contract Appeals (CBCA). An Army pleading in that proceeding (signed by Army attorney Rachael Orejana) contains two statements referring to Schofield as Mr. Aubart’s 

“official duty station.” SAppx 94 (“On or about February 

10, 2017, LTC Christopher Siegrist . . . notified RCC-P employees, including [Mr. Aubart], that their official duty station would be changed for a period of approximately 

fourteen weeks.”); SAppx 95 (“It is well-settled that an employee who is engaged in commuting between his or her 

residence and official duty station is performing personal 

business, not official business, for the government, and the 

employing agency is not required to pay the transportation 

costs that the employee incurs while commuting.”). Similar language appears in an attached sworn declaration 

from Lt. Col. Siegrist. SAppx 98–99 (“On or about February 10, 2017, I notified RCC-P employees, via written memorandum, that their official duty station would be changed 

for a period of approximately fourteen weeks and that their 

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4 AUBART v. MSPB

new duty station would be located at Building 1500 on 

Schofield Barracks, Oahu, Hawaii.”). The CBCA denied 

Mr. Aubart’s claim on September 11, 2017, and Mr. Aubart 

withdrew the appeal of the denial he filed in this court. 

On December 28, 2017, Mr. Aubart initiated another

proceeding: He filed a civil complaint against the Secretary 

of the Army in the District Court for the District of Hawaii, 

asserting that he was entitled to compensation for his 

travel expenses because his relocation to Schofield qualified as Temporary Duty (TDY)—as opposed to a Permanent 

Change of Station (PCS) or Temporary Change of Station 

(TCS)—under the Department of Defense’s Joint Travel 

Regulations. See Aubart v. McCarthy, No 1:17-cv-00611, 

2019 WL 3892408, at *1, *3 (D. Haw. Aug. 19, 2019). The

Secretary moved for summary judgment, arguing in relevant part that Mr. Aubart would not be eligible for compensation for his travel expenses, because his permanent duty 

station (or official duty station) had changed during the 

time he worked at Schofield (whether classified either as a 

permanent change of station or as a temporary change of 

station). Id. at *3; see SAppx 115–27 (memorandum in support of motion for summary judgment). As part of the summary judgment briefing, the Secretary provided a sworn 

declaration from RCC-P Deputy Director Scott Chilson

stating that “[o]n or about February 10, 2017, Lieutenant 

Colonel Christopher M. Siegrist provided notice to employees of RCC-P who worked at Building 520 at Fort Shafter 

that their duty station was being moved to Schofield Barracks because the office at Fort Shafter was no longer available.” SAppx 55–57 (dated July 17, 2019). 

The district court granted the Secretary’s motion on 

August 19, 2019. Aubart, 2019 WL 3892408, at *6. The 

court agreed with Mr. Aubart that the Siegrist Memorandum “could have been drafted with greater clarity,” but it 

nevertheless concluded that the “undisputed record supports the conclusion that [Mr. Aubart’s] permanent duty 

station was changed from Fort Shafter to Schofield 

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AUBART v. MSPB 5

Barracks, for the period of February 18, 2017 through November 14, 2017” and that, as a result, he “is not entitled 

to reimbursement for the transportation costs incurred.” 

Id. at *5–6. Mr. Aubart appealed to the Ninth Circuit, 

which affirmed in December 2020. Aubart v. McCarthy, 

830 F. App’x 959, 960 (9th Cir. 2020). 

After the district court’s ruling but during the Ninth 

Circuit appeal, on November 7, 2019, Mr. Aubart wrote to 

Lt. Col. Heath Giesecke, the new RCC-P director, stating:

“I am the Whistleblower, but most RCCP civilians know 

Ms[.] Orejana lied about the permanent change of station 

to keep us from getting reimbursed.” SAppx 58. Similarly, 

on April 7, 2020, Mr. Aubart wrote to Brigadier General

Jan Norris, stating: 

In 2017, Army lawyer Rachael Orejana and former 

RCCP Director LTC Siegrist made false statements 

in court documents claiming LTC Siegrist notified 

RCCP employees of a PCS via a “Siegrist Memorandum” despite the fact that the Siegrist Memorandum clearly refers to a TDY, not a PCS. The 

purpose of these statements was to justify denial of 

otherwise lawful TDY claims. . . . In 2019, Ms[.] 

Orejana admitted in [a] sworn statement that the 

Siegrist memorandum never referred to a PCS. 

Despite Ms[.] Orejana’s admission, Army lawyers 

continue to assert in court documents that the 

Siegrist Memorandum notified RCCP employees of 

a PCS . . .1 Army lawyers solicited a false sworn 

statement from RCCP Deputy Director, Scott 

1 Mr. Aubart is apparently referring to a February 

11, 2019 submission Ms. Orejana made to the Merit Systems Protection Board in a separate case involving him, in 

which she made the verifiably true statement that she 

“never referred to a PCS in the [CBCA] pleadings.” SAppx 

101–09; see SAppx 94–97 (CBCA pleading in question). 

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6 AUBART v. MSPB

Chilson, which claimed the Siegrist Memorandum 

notified RCCP employees “that their duty station 

was being moved to Schofield Barracks because the 

office at Fort Shafter was no longer available.” The 

obvious purpose of this statement was to further 

the Army’s false narrative of a PCS. The statement 

is patently false, not only because it falsely claims 

a PCS, but also because the Fort Shafter office was 

always intended to be, and obviously continues to 

be, available.

SAppx 59. Those are the disclosures Mr. Aubart now asserts constituted protected whistleblowing.

On May 1, 2020, RCC-P Deputy Director Chilson sent 

Mr. Aubart a Notice of Proposed Removal for conduct unbecoming a supervisor. SAppx 71–75. On May 26, 2020, 

Mr. Aubart filed a whistleblower retaliation complaint 

with the Office of Special Counsel (OSC), pursuant to 5 

U.S.C. § 1214(a)(1)(A), seeking corrective action for alleged 

“prohibited personnel practice[s]” by the Army, namely, retaliation for whistleblowing in violation of the WPA, codified as relevant at 5 U.S.C. § 2302(b)(8), (9). The OSC 

complaint is not in the record, but the Board decision now 

before us indicates that, in the complaint, Mr. Aubart 

claimed that his employers had retaliated by creating a 

hostile work environment and suggesting his removal in 

response to his emails to Lt. Col. Giesecke and Brig. Gen. 

Norris—which he alleged constituted reports that Ms. Orejana, Lt. Col. Siegrist, and Deputy Director Chilson violated 18 U.S.C. § 1001 (prohibiting materially false 

statements in connection with official proceedings) during 

the CBCA and district court proceedings. SAppx 7–13. 

OSC closed its investigation without action. Mr. Aubart 

then filed an IRA appeal with the Board. SAppx 35–76; see 

also SAppx 90–149 (responses to order to provide evidence). 

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AUBART v. MSPB 7

The Army moved to dismiss the appeal for lack of jurisdiction, which an administrative judge for the Board 

granted in an initial decision on October 23, 2020. First, 

the administrative judge determined that Mr. Aubart had 

exhausted his remedies before OSC. SAppx 10. Next, the 

administrative judge surveyed the relevant statements 

and concluded that Mr. Aubart failed to nonfrivolously allege that he had a reasonable belief that Ms. Orejana and 

Lt. Col. Siegrist violated § 1001 in their CBCA submissions, which asserted that the Siegrist Memorandum notified RCC-P employees that their “official duty station” had 

been changed. SAppx 13–18. Although Mr. Aubart argued 

that the Siegrist Memorandum “did not constitute a 

change in his official duty station,” the administrative 

judge rejected the argument, stating that it “boil[ed] down 

to how the relocation should be legally characterized as opposed to any evidence of a factual misrepresentation by the 

agency.” SAppx 17. Similarly, the administrative judge 

concluded that Mr. Aubart failed to nonfrivolously allege 

that he had a reasonable belief that Deputy Directory Chilson violated § 1001 by stating in his July 2019 declaration 

in district court that Lt. Col. Siegrist informed the RCC-P 

employees that their “duty station was being moved . . . because the office at Fort Shafter was no longer available.” 

SAppx 18–20. The administrative judge noted Mr. Aubart’s contention that the Fort Shafter office was still available for storing equipment, furniture, and other items 

during the renovation, but determined that “[w]hile Chilson could have added that the reason the Fort Shafter office space was not available was due to it being renovated[,] 

I do not find [that] this lack of detail makes his statement 

false.” SAppx 19. Accordingly, the administrative judge 

dismissed the appeal for lack of jurisdiction. SAppx 20. 

Mr. Aubart initially petitioned for review by the Board, 

but he withdrew that request, and, as a result, the initial 

decision become the final decision of the Board on August 

12, 2021. SAppx 1. Mr. Aubart timely appealed to this 

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8 AUBART v. MSPB

court. 5 U.S.C. § 7703(b)(1)(B); Jones v. Dep’t of Health & 

Human Servs., 834 F.3d 1361, 1364–66 (Fed. Cir. 2016)

(permitting notice of appeal to be filed before initial decision becomes final decision of the Board). We have jurisdiction under 28 U.S.C. § 1295(a)(9).

II

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). “Whether the board had jurisdiction to adjudicate a case is a question of law, which we review de novo.” 

Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 

1995).

The Board has jurisdiction over an IRA appeal under 

the WPA if the appellant, having exhausted the possibility 

of OSC administrative remedies, makes to the Board “nonfrivolous allegations” that (1) the appellant engaged in 

whistleblowing activity by making a protected disclosure 

under 5 U.S.C. § 2302(b)(8) (or § 2302(b)(9)(A)(i), (B), (C), 

or (D), which are not at issue here) and (2) the disclosure 

was a contributing factor in the agency’s decision to take or 

fail to take, or the agency’s threats to take or fail to take, a 

“personnel action” against the appellant. 5 U.S.C. 

§ 1221(a); id. § 2302(b)(8); see Hessami v. Merit Sys. Prot. 

Bd., 979 F.3d 1362, 1367 (Fed. Cir. 2021); Cahill v. Merit 

Sys. Prot. Bd., 821 F.3d 1370, 1373 (Fed. Cir. 2016); Kahn 

v. Dep’t of Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008);

Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367, 1371–72 

(Fed. Cir. 2001). A protected disclosure is one that the employee “reasonably believes evidences (i) any violation of 

any law, rule, or regulation, or (ii) gross mismanagement, 

a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” 5 U.S.C 

§ 2302(b)(8). And an employee’s belief is reasonable if “a 

Case: 21-2190 Document: 28 Page: 8 Filed: 01/18/2022
AUBART v. MSPB 9

disinterested observer with knowledge of the essential 

facts known to and readily ascertainable by the employee 

[could] reasonably conclude that the actions of the government” come within one of the protected categories. 

Lachance v. White, 174 F.3d 1378, 1380–81 (Fed. Cir. 

1999); cf. Baldwin v. Dep’t of Veterans Affairs, 113 M.S.P.R. 

469, 477–78 (M.S.P.B. 2010) (“Because the inquiry is 

whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the actions 

evidenced a violation of law, we consider concepts of criminal law from a layman’s perspective as well as in a legal 

sense.” (citation omitted)).

Mr. Aubart argues on appeal that the Board’s decision 

“failed to properly apply the non-frivolous standard at the 

jurisdictional stage.” Informal Reply Br. 12–15; see also 

Informal Opening Br. 2–3.2 We disagree. A nonfrivolous 

2 Various new arguments presented in Mr. Aubart’s 

reply in this court are forfeited. Informal Reply Br. 1–12 

(primarily contending that transfer was not in accordance 

5 U.S.C. § 5737). Mr. Aubart did not present those arguments in his opening brief to this court, Informal Opening 

Br. 2–3; nor are such arguments reflected in Mr. Aubart’s 

submissions to the Board now filed with us, SAppx 35–42; 

SAppx 90–93. Moreover, it appears (but given our finding 

of forfeiture we need not decide) that Mr. Aubart’s § 5737-

based arguments would require us to redecide factual and 

legal issues—concerning the character of his change of 

duty station to Schofield and his corresponding entitlement 

to compensation—that the district court already decided 

adversely to Mr. Aubart in the Hawaii litigation, issues he 

is precluded from relitigating here. See Morgan v. Dep’t of 

Energy, 424 F.3d 1271, 1274–76 (Fed. Cir. 2005); Kroeger 

v. U.S. Postal Serv., 865 F.2d 235, 239 (Fed Cir. 1988); 

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10 AUBART v. MSPB

allegation “is an assertion that, if proven, could establish 

the matter at issue” under the WPA requirements; it must 

be plausible on its face and more than conclusory. 5 C.F.R. 

§ 1201.4(s); see Hessami, 979 F.3d at 1367–69; Yunus, 242 

F.3d at 1371–72. As a result, the key question here is 

whether Mr. Aubart plausibly alleged (after the Hawaii 

district court ruling) that a disinterested observer, privy to 

all essential facts known and readily ascertainable to Mr. 

Aubart, would reasonably conclude that Ms. Orejana, Lt. 

Col. Siegrist, and Deputy Director Chilson “knowingly and 

willfully” made “materially false, fictitious, or fraudulent 

statement[s] or representation[s]” in matters “within the 

jurisdiction of the executive, legislative, or judicial branch 

of Government of the United States.” 18 U.S.C. § 1001(a); 

see, e.g., United States v. Litvak, 808 F.3d 160, 170 (2d Cir. 

2015).3 We agree with the Board that Mr. Aubart did not 

(and could not) plausibly allege that any disinterested observer, even a layperson, would reasonably believe that the 

named individuals violated § 1001. 

First, no such reasonable belief is possible regarding

Ms. Orejana and Lt. Col. Siegrist’s statements in their 

CBCA submissions that the Siegrist Memorandum notified 

RCC-P employees that their “official duty station” had been 

changed—even though the Siegrist Memorandum did not 

itself use the term “official duty station” and did repeatedly

Mother’s Rest., Inc. v. Mama’s Pizza, Inc., 723 F.2d 1566, 

1569–73 & n.4 (Fed. Cir. 1983).

3 We, like the Board, focus on 18 U.S.C. § 1001 because that is the statute Mr. Aubart himself identified in 

his IRA appeal. SAppx 35. And we do not find that Mr. 

Aubart’s statements and the circumstances surrounding 

them clearly implicate another identifiable violation of law, 

rule, or regulation. Langer v. Dep’t of the Treasury, 265 

F.3d 1259, 1266 (Fed. Cir. 2001); see also Griesbach v. Dep’t 

of Veterans Affairs, 705 F. App’x 962, 965 (Fed. Cir. 2017). 

Case: 21-2190 Document: 28 Page: 10 Filed: 01/18/2022
AUBART v. MSPB 11

use the word “temporary.” Compare SAppx 43 (Siegrist 

Memorandum), with SAppx 94–99 (CBCA submissions). 

The district court in Mr. Aubart’s Hawaii litigation explained why the Siegrist Memorandum, properly read,

treated Mr. Aubart’s permanent duty station as changed, 

given the technical definitions set forth in the applicable 

law and regulations. Aubart, 2019 WL 3892408, at *5–6. 

As a result, no disinterested observer, aware of the district 

court litigation as Mr. Aubart certainly was (when he made 

the asserted whistleblowing disclosures), could reasonably 

believe that Ms. Orejana and Lt. Col. Siegrist’s statements 

making essentially the same legal arguments that the district court ratified had knowingly and willfully made materially false statements in violation of § 1001(a). See id. 

(using “official duty station” and “permanent duty station” 

interchangeably); Informal Reply Br. 3 (Mr. Aubart recognizing that “permanent duty station” is synonymous with 

“official station”); SAppx 91 (same).4 

Second, no disinterested observer could reasonably believe that Deputy Directory Chilson violated § 1001 by stating in his July 2019 declaration in district court that Lt. 

Col. Siegrist informed the RCC-P employees that their 

“duty station was being moved . . . because the office at 

Fort Shafter was no longer available.” SAppx 55–56. For 

the same reasons described above, there is no possible 

4 The same conclusion applies to Mr. Aubart’s comparable assertion about the U.S. Attorney’s office’s arguments to the Hawaii district court about the legal character 

of the change. See SAppx 18 n.4. Given our conclusions, 

we need not reach the question of the applicability here of 

18 U.S.C. § 1001(b), which provides: “Subsection (a) does 

not apply to a party to a judicial proceeding, or that party’s 

counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or 

magistrate in that proceeding.” 

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12 AUBART v. MSPB

plausible allegation that anyone could view the first half of 

Deputy Directory Chilson’s statement (i.e., that the duty 

station was moved) as materially false. Further, there is 

no possible plausible allegation that anyone could view the 

second half of the statement (i.e., that Fort Shafter was no 

longer available) as materially false simply because Deputy Directory Chilson did not additionally spell out the precise way (not available for regular work, but available for 

storage, etc.) or reason (for renovation) that Fort Shafter

was no longer available. 

As Mr. Aubart has made no other allegations of violations of law, rule, or regulation, or of gross mismanagement, gross waste of funds, abuse of authority, or 

substantial and specific danger to public health or safety, 

we agree that the Board lacked jurisdiction under 5 U.S.C. 

§ 1221 and was obligated to dismiss Mr. Aubart’s petition. 

III

For the foregoing reasons, we affirm the Board’s dismissal of Mr. Aubart’s action for lack of jurisdiction. 

The parties shall bear their own costs.

AFFIRMED

Case: 21-2190 Document: 28 Page: 12 Filed: 01/18/2022