NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit ______________________ 

PAUL G. MIRANNE,

Petitioner

v.

DEPARTMENT OF THE NAVY,

Respondent

______________________ 

2021-1497

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. AT-0752-19-0669-I-3.

______________________ 

Decided: October 8, 2021 

______________________ 

PAUL G. MIRANNE, Pensacola, FL, pro se. 

 DANIEL HOFFMAN, Commercial Litigation Branch, Civil 

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

BOYNTON, STEVEN JOHN GILLINGHAM, MARTIN F. HOCKEY,

JR. 

 ______________________ 

Before PROST, TARANTO, and HUGHES, Circuit Judges.

PER CURIAM. 

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2 MIRANNE v. NAVY

Paul G. Miranne was an employee of the Department 

of the Navy. After Mr. Miranne sent a strongly worded, 

accusatory email to coworkers and supervisors suggesting 

that they were complicit in a conspiracy, the Navy fired 

him. He unsuccessfully appealed his termination to the 

Merit Systems Protection Board, which found the grounds 

for removal established and the removal penalty justified, 

and which rejected Mr. Miranne’s affirmative defense of 

whistleblower retaliation. Mr. Miranne now appeals. We

affirm the Board’s decision. 

I 

Beginning in 1999, the Navy employed Mr. Miranne as 

a Personnel Psychologist at the Navy Advancement Center 

in Pensacola, Florida. In that position, Mr. Miranne had 

access to the Navy Marine Corps Intranet. His position 

was initially designated “non-sensitive,” meaning that it 

was “a position of trust and ha[d] no effect on national security.” SAppx. 51, Appx. 42. 

On September 27, 2017, however, the Commanding Officer of the Navy Education and Training Professional Development and Technology Center (NETPDC), Captain 

Brooks, announced a change that would affect Mr. Miranne. Captain Brooks sent out, to a large internal audience, an email stating that personnel with access to the 

Navy Marine Corps Intranet would require a designation 

of at least “non-critical sensitive” to comply with Department of Defense and Navy policy. Appx. 92, 295. Such a 

designation means that a person fulfilling the duties of the 

position “could potentially cause damage to national security.” SAppx. 51. Captain Brooks explained:

In the last year, we have done a thorough review of 

all our positions in accordance with NETPDCINST

12510.2B. The review revealed we have multiple 

positions across the command that have an assigned position sensitivity of “non-sensitive” vice 

“non-critical sensitive.” . . . .

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MIRANNE v. NAVY 3

I have directed [Navy employee] N1 to proceed in 

updating the Position Descriptions (PDs) for those 

listed as “non-sensitive.” I have also directed our 

Security Manager (N44) to simultaneously initiate 

Tier-3 background investigations as required. 

Appx. 92.

After receiving Captain Brooks’s email, Mr. Miranne 

contacted the Command Security Manager. Mr. Miranne 

expressed skepticism that anything he would do in his position could affect national security, and he asked, “Am I 

missing something?” Appx. 124. The Command Security 

Manager replied, “Yes, you are missing something,” and explained why. Appx. 123.

The following month, in October 2017, Mr. Miranne 

again contacted the Command Security Manager for further clarification of his position’s security clearance. He 

was told that supervisors were continuing to update position descriptions, but that his specific position description 

“requires a secret security clearance.” Appx. 176. Over the 

following 19 months, Mr. Miranne inquired of various security staff and supervisors about the change in security 

clearance for his position.

By May 2019, Mr. Miranne viewed the policy change as 

a violation of the regulations governing national-security 

designations of positions and its adoption as a result of 

criminal or otherwise improper acts by many of his coworkers and supervisors. On May 9, 2019, Mr. Miranne emailed 

approximately 20 individuals, including his entire chain of 

command, to express disagreement with the Navy’s policy 

change. One passage in the email states:

ON ITS FACE, it should be obvious to all individuals receiving this email that our access to [the Navy 

Marine Corps Intranet] is not the reason for this 

action. I have surveyed countless coworkers and 

other individuals–military and civilian alike–who 

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4 MIRANNE v. NAVY

are all in agreement that our access to [the Intranet] poses no threat to national security. So why 

does NETPDC management continue with this 

charade? That’s easy: it was necessary to implement the scheme developed by Cdr. Johnson and 

Mr. Hannan (and most of you all – wittingly or unwittingly) to essentially provide greater flexibility 

between the classified and unclassified branches of 

the Exam Development division. This, ladies and 

gentlemen, is commonly known as fraud: the explanation provided for the personnel action at issue 

was not the real reason for the personnel action. In 

legal parlance, it is considered a materially false, 

fictitious, or fraudulent statement or representation (I call it the Lanaro Law). When more than 

one individual is involved, it becomes a conspiracy 

to commit fraud.

Appx. 2.

As a result of the email, the Navy charged Mr. Miranne 

with disrespectful and improper conduct and eventually removed him from federal service based on that charge. Mr. 

Miranne appealed his removal to the Board under 5 U.S.C. 

chapters 75 and 77. In the appeal, he stated as an affirmative defense to the removal that he was removed in retaliation for whistleblowing—the May 9 email constituting 

the allegedly protected disclosure—in violation of the 

Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8). 

The administrative judge assigned by the Board, after 

a hearing, sustained the charge of disrespectful and improper conduct, affirmed the Navy’s decision to remove Mr. 

Miranne as a proper penalty for the conduct, and rejected 

the whistleblower defense. Appx. 10. (We refer to the decision as that of the Board because the decision became the 

decision of the Board when Mr. Miranne did not seek full 

Board review within the prescribed time.) The Board described the May 2019 email as being “as delicate and 

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MIRANNE v. NAVY 5

nuanced as a cannon blast” with “an air of moral superiority, abrasiveness, condescension, and profound disrespect 

which simply cannot be minimized or misinterpreted.” 

SAppx. 14. The Board found that Mr. Miranne “showed 

dreadfully poor judgment” and that, given the nature of his 

position, termination was reasonable. SAppx. 15. And the 

Board concluded that Mr. Miranne was not protected under 

the Whistleblower Protection Act because it could not second-guess the relevant Navy decisions on security designations and, in addition, Mr. Miranne’s belief about the 

activity he attacked, though genuinely held, was objectively unreasonable. SAppx. 18, 22. 

The Board’s decision became final on November 2, 

2020. SAppx. 23. This court received Mr. Miranne’s notice 

of appeal on January 2, 2021, ECF # 1, within the permitted 60 days, 5 U.S.C. § 7703(b)(1)(A). 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). “Underlying factual determinations are reviewed for substantial evidence.” McMillan v. Dep’t of Justice, 812 F.3d 1364, 1371 (Fed. Cir. 2016). Mr. Miranne 

bears the burden of establishing error that justifies setting 

aside the Board’s decision. Fernandez v. Dep’t of the Army, 

234 F.3d 553, 555 (Fed. Cir. 2000).

A 

We first address Mr. Miranne’s challenge to the 

Board’s rejection of his whistleblowing defense. To prove 

retaliation for whistleblowing as an affirmative defense, 

Mr. Miranne must show by a preponderance of the evidence that he made a protected disclosure under 5 U.S.C. 

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6 MIRANNE v. NAVY

§ 2302(b)(8) or (9) that was a contributing factor to his termination. Cahill v. MSPB, 821 F.3d 1370, 1373 (Fed. Cir. 

2016). Key here is the requirement that, for the asserted 

retaliation to exist, Mr. Miranne had to “reasonably” believe that the information he disclosed “evidences” a “violation of any law, rule, or regulation” or certain other 

wrongdoing. 5 U.S.C. § 2302(b)(8)(A). 

We conclude that the Board’s factual findings are supported by substantial evidence and, under the proper legal 

standard, support the determination that Mr. Miranne’s 

beliefs about the information at issue were not reasonable. 

See Giove v. Dep’t of Transportation, 230 F.3d 1333, 1338–

39 (Fed. Cir. 2000) (applying substantial-evidence review 

to factual findings on reasonable-belief issue). This conclusion requires affirmance of the Board’s rejection of the defense even apart from the Board’s reliance on the limits on 

Board authorization to second-guess agency choices about 

what security designations are needed for particular positions. 

First, Mr. Miranne points to the timing of his background investigation in suggesting that a belief in illegality 

of the Navy’s redesignation of his position was reasonable. 

He cites a regulation stating that an agency “must” initiate 

a background investigation “no later than 14 working days 

after the change in designation[,]” 5 C.F.R. § 1400.204(b)(1) 

(emphasis added), and points to the fact that the Navy initiated his background investigation before his position was 

changed. See Pet. Br. 9. But assuming an adequate connection of this assertion to the May 9 disclosure, it is not 

reasonable to interpret this regulation as doing more than 

stating the latest possible time for an agency to initiate an 

investigation. Given the self-evident purpose to prevent 

service in a position having a particular designation for no 

more than two weeks without a background investigation 

getting started, it is not reasonable to read the regulation 

to prohibition initiation of the investigation even before the 

position changes its designation. Indeed, the regulations 

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MIRANNE v. NAVY 7

contemplate just such an anticipatory investigation, 

providing that the agency “may provide advance notice of 

the redesignation of a position to allow time for completion 

of the forms, releases and other information needed from 

the incumbent to initiate the investigation.” 5 C.F.R. § 

1400.204(c).

There is substantial evidence that the Navy adopted its 

security changes in compliance with the cited regulations, 

not as a pretext for manipulating personnel. One security 

officer, Mr. Sganga testified that the policy change dates 

back to a 1995 executive order that “progressively gained 

momentum” as “more people [gained] access to more information[.]” SAppx. 55–56. The Navy implemented the executive order, he said, based on “an [Office of Personnel 

Management] memo and [Department of Defense] guidance[.]” SAppx. 56. He pointed to various supporting documents, including the Navy’s and Defense’s Security 

Manuals, as being significant to the policy change. SAppx. 

59, 62. The Board found Mr. Sganga to be “a subject matter 

expert” who “credibly and consistently testified with supporting evidence that this planned change was not only permitted but was required[.]” Appx. 30. In contrast, Mr. 

Miranne called no witnesses to support his theory. The 

Board reasonably found Mr. Sganga to be more credible 

than Mr. Miranne.1

Having considered Mr. Miranne’s various arguments 

for the reasonableness of his belief that the Navy conduct 

came within the statutory illegality/wrongdoing standard, 

we see no reversible error in the Board determination that 

1 Mr. Miranne has requested that we take the extraordinary step of supplementing the record on which we 

are to adjudicate his petition for review by adding several 

emails that were not in the agency record. ECF # 14, # 18. 

We deny the request, concluding that Mr. Miranne has not 

met the demanding standards for such action.

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8 MIRANNE v. NAVY

his belief was not reasonable. Accordingly, his challenge to 

the Board’s rejection of his whistleblowing defense fails.

B 

Mr. Miranne challenges the Board’s finding that the 

Navy proved its charge of unprofessional conduct and reasonably chose removal as a penalty. We reject this challenge. 

The Board had substantial evidence to support its finding on the underlying conduct. There was the May 9 email 

itself (“about as delicate and nuanced as a cannon blast,” 

SAppx. 14), and a supervisor’s reaction to the email (“the 

most disrespectful and unprofessional email I have seen or 

received in my 35 years of federal service,” SAppx. 16). The 

Board could reasonably find the charge supported despite 

Mr. Miranne’s steadfast view that the tone was “justified.” 

SAppx. 13.

As to the penalty, the Board found the testimony of the 

deciding official, Mr. Jackson, regarding his analysis of 

both mitigating and aggravating factors to be “detailed and 

consistent,” and the Board also found that Mr. Jackson’s 

“demeanor was thoughtful” and “calm” and that Mr. Jackson was “forthright about his reasons for removing the appellant.” SAppx. 18. This court cannot overturn an 

agency’s choice of “penalty unless it is unauthorized or exceeds the bounds of reasonableness because it is so harsh 

and unconscionably disproportionate to the offense that it 

amounts to an abuse of discretion, or where the record is 

devoid of any basis demonstrating reasonableness.” 

Dominguez v. Dep’t of Air Force, 803 F.2d 680, 684 (Fed.

Cir. 1986). Here, there was some evidence that Mr. Miranne’s email fits into a larger pattern of similar conduct 

over the years, despite prior warnings and lesser discipline, 

some of which Mr. Miranne disputes. But it is evident that 

the determinative factor in the removal decision was the 

assessment that the May 9 email was exceptionally offensive and manifested “dreadfully poor judgment,” which “no 

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MIRANNE v. NAVY 9

doubt would have detracted from the appellant’s character 

and reputation as a Personnel Psychologist in any professional office.” SAppx. 15. Despite Mr. Miranne’s effort to 

show that the email does not fairly impair his ability to 

succeed in his position, Pet. Br. 18–22, the Navy did not act 

unreasonably in concluding otherwise or, therefore, in deciding to remove Mr. Miranne from his position. 

CONCLUSION

We have considered Mr. Miranne’s remaining arguments and conclude that they are without merit. For the 

reasons discussed above, we affirm the decision of the 

Board.

The parties shall bear their own costs.

AFFIRMED

 

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