UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

VAUGHN HOEFLIN STANDLEY,

Appellant,

v.

DEPARTMENT OF ENERGY,

Agency.

DOCKET NUMBER

DC-1221-18-0284-X-1

DATE: May 17, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Vaughn Hoeflin Standley, Gainesville, Virginia, pro se.

Saul Ramos, Albuquerque, New Mexico, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member2

FINAL ORDER

¶1 On August 30, 2019, the administrative judge issued a compliance initial 

decision finding the agency in noncompliance with a November 21, 2018 initial 

 

1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

2 Member Leavitt’s name is included in decisions on which the three-member Board 

completed the voting process prior to his March 1, 2023 departure.
2

decision, which granted, in part, the appellant’s request for corrective action in 

his individual right of action (IRA) appeal. Standley v. Department of Energy, 

MSPB Docket No. DC-1221-18-0284-C-1, Compliance File (CF), Tab 22, 

Compliance Initial Decision (CID); Standley v. Department of Energy, MSPB 

Docket No. DC-1221-18-0284-W-1, Initial Appeal File, Tab 29, Initial Decision 

(ID). For the reasons discussed below, we now find the agency in compliance 

and DISMISS the petition for enforcement. 

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

¶2 In the November 21, 2018 initial decision, the administrative judge found 

that the appellant proved his prima facie case of whistleblower reprisal and that 

the agency failed to prove by clear and convincing evidence that it would have 

taken some of the same actions in the absence of his protected activity—namely, 

rating him as “Fully Meets Expectations” in Specific Performance Objective 

(SPO) #1 for Fiscal Years (FY) 2015 and 2016. ID. Accordingly, she granted, in 

part, the appellant’s request for corrective action in his IRA appeal and ordered 

the agency to reconstruct his FY 2015 and FY 2016 ratings of record for SPO #1 

and to provide him any associated bonus or other award to which he was entitled 

in light of his reconstructed ratings. ID at 48-49. After neither party filed a 

petition for review, the initial decision became the final decision of the Board on 

December 26, 2018. ID at 50; see 5 C.F.R. § 1201.113. 

¶3 On February 8, 2019, the appellant petitioned for enforcement of the initial 

decision, arguing that the agency had failed to properly reconstruct his 

performance rating for SPO #1 in accordance with the initial decision. CF, Tab 1. 

The administrative judge agreed, issuing an August 30, 2019 compliance initial 

decision granting the petition for enforcement and ordering the agency to change 

the appellant’s FY 2015 and FY 2016 ratings for SPO #1 to “Significantly 

Exceeds Expectations” and to provide him any associated bonus or other award to 

which he was entitled in light of the upgraded rating. CID at 10-11. On 
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October 4, 2019, the agency filed with the Board a notice of compliance 

indicating that it had changed the appellant’s ratings as ordered by the 

administrative judge and that it had determined that the upgraded ratings entitled 

him to additional performance awards of $1,5653for FY 2015 and to $1,528 for 

FY 2016. Standley v. Department of Energy, MSPB Docket No. DC-1221-18-

0284-X-1, Compliance Referral File (CRF), Tab 1 at 2, 4. The agency provided 

copies of the corrected performance appraisals for FY 2015 and FY 2016. Id. 

at 5-17. 

¶4 In an October 4, 2019 acknowledgment order, the Clerk of the Board 

informed the appellant that he could respond to any agency submission regarding 

compliance within 20 days of the date of service and that, in the absence of a 

response, the Board may assume that he is satisfied and dismiss the petition for 

enforcement. CRF, Tab 2 at 2. The appellant responded on October 10 and 21, 

2019, stating that he had not received the additional bonus awards and arguing 

that the responsible agency officials should be sanctioned for their delay and 

repeated failures to timely comply with the Board’s orders. CRF, Tabs 3-4. 

¶5 On November 4, 2019, the agency submitted additional evidence of

compliance, including Standard Forms (SF) 50 (Notifications of Personnel 

Actions) correcting the appellant’s lump sum performance awards for FY 2015

and FY 2016 to reflect increases of $1,565 and $1,528, respectively. CRF, Tab 5 

at 5-6. The agency also provided an email showing that the request to process the 

corrected payments was sent to the Defense Finance and Accounting Service 

(DFAS) on October 23, 2019, and that, according to DFAS, it would process the 

 

3 Although the agency’s pleading states that the appellant would receive an additional 

$1,519 for his FY 2015 performance award, CRF, Tab 1 at 2, the attached evidence 

reflects that he was entitled to an additional $1,565, id. at 4. In light of other evidence 

submitted by the agency, it appears that the additional bonus amount of $1,565 for 

FY 2015 is correct and was paid, and that the agency’s reference to $1,519 was a 

typographical error. CRF, Tab 5 at 5 (SF-50 correcting the appellant’s FY 2015 

performance award from $569 to $2,134, a difference of $1,565). 
4

payments within 30 days. Id. at 7. The appellant did not respond to the agency’s 

additional evidence of compliance. 

¶6 When the Board finds a personnel action unwarranted, the aim is to place 

the appellant, as nearly as possible, in the situation he would have been in had the 

wrongful personnel action not occurred. Vaughan v. Department of Agriculture, 

116 M.S.P.R. 319, ¶ 5 (2011); King v. Department of the Navy, 100 M.S.P.R. 116, 

¶ 12 (2005), aff’d per curiam, 167 F. App’x 191 (Fed. Cir. 2006). The agency 

bears the burden to prove compliance with the Board’s order by a preponderance 

of the evidence.4Vaughan, 116 M.S.P.R. 319, ¶ 5; 5 C.F.R. § 1201.183(d). An 

agency’s assertions of compliance must include a clear explanation of its 

compliance actions supported by documentary evidence. Vaughan, 116 M.S.P.R. 

319, ¶ 5. The appellant may rebut the agency’s evidence of compliance by 

making specific, nonconclusory, and supported assertions of continued 

noncompliance. Id.

¶7 As set forth above, the administrative judge found that the agency failed to 

demonstrate by preponderant evidence that it properly reconstructed the 

appellant’s performance appraisals for FY2015 and FY2016 with respect to SPO 

#1. Accordingly, she directed the agency to change the appellant’s rating for 

SPO #1 in his FY 2015 and FY 2016 performance appraisals from “Fully Meets 

Expectations” to “Significantly Exceeds Expectations” and to provide him with 

any associated bonus or other award to which he was entitled in light of these 

upgraded ratings. CID at 10-11. The agency has now submitted evidence 

showing that it changed the appellant’s rating of record for SPO #1 to 

“Significantly Exceeds Expectations” in both his FY 2015 and FY 2016 

performance appraisals and that it sent to DFAS for processing and payment

 

4 A preponderance of the evidence is the degree of relevant evidence that a reasonable 

person, considering the record as a whole, would accept as sufficient to find that a 

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5

additional performance awards in the amounts of $1,565 for FY 2015 and $1,528 

for FY 2016. CRF, Tab 1 at 4-8, 11-15, Tab 5 at 5-7. The appellant has not 

disputed that the agency correctly changed his rating of record in accordance with 

the compliance initial decision, nor has he challenged the calculation or payment 

of the additional performance awards stemming from the improved ratings. 

¶8 In light of the foregoing, we find that the agency is now in compliance and

dismiss the petition for enforcement.

5

 This is the final decision of the Merit 

Systems Protection Board in this compliance proceeding. Title 5 of the Code of 

Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney 

fees and costs. To be paid, you must meet the requirements set out at Title 5 of 

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The 

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If 

you believe you meet these requirements, you must file a motion for attorney fees 

WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You 

must file your attorney fees motion with the office that issued the initial decision 

on your appeal.

 

5

To the extent that the appellant requests that the Board sanction the agency for its 

delay in paying him the additional performance awards, the Board lacks authority to 

impose sanctions once compliance has been obtained. Bruton v. Department of 

Veterans Affairs, 112 M.S.P.R. 313, ¶ 14 (2009). 
6

NOTICE OF APPEAL RIGHTS6

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

 

6

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
7

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W.

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on 

race, color, religion, sex, national origin, or a disabling condition, you may be 

entitled to representation by a court-appointed lawyer and to waiver of any 
8

requirement of prepayment of fees, costs, or other security. See 42 U.S.C. 

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 
9

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.7 The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W.

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

 

7

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510.
10

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board