UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

VAUGHN HOEFLIN STANDLEY,

Appellant,

v.

DEPARTMENT OF ENERGY,

Agency.

DOCKET NUMBER

DC-1221-16-0168-W-1

DATE: January 3, 2017

THIS FINAL ORDER IS NONPRECEDENTIAL1

Richard R. Renner, Washington, D.C., for the appellant.

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

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed his individual right of action (IRA) appeal for lack of jurisdiction. 

Generally, we grant petitions such as this one only when: the initial decision 

contains erroneous findings of material fact; the initial decision is based on an 

erroneous interpretation of statute or regulation or the erroneous application of 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

the law to the facts of the case; the administrative judge’s rulings during either 

the course of the appeal or the initial decision were not consistent with required 

procedures or involved an abuse of discretion, and the resulting error affected the 

outcome of the case; or new and material evidence or legal argument is available 

that, despite the petitioner’s due diligence, was not available when the record 

closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. 

§ 1201.115). After fully considering the filings in this appeal, we conclude that 

the petitioner has not established any basis under section 1201.115 for granting 

the petition for review. Therefore, we DENY the petition for review. Except as 

expressly MODIFIED by this Final Order, we AFFIRM the initial decision.2

BACKGROUND

¶2 The appellant is a General Engineer, NN-4, with the agency’s National 

Nuclear Security Administration. Initial Appeal File (IAF), Tab 1. In 

January 2014, he told his supervisor, the Director of the Office of Defense 

Nuclear Nonproliferation Research and Development (Director), and the Deputy 

Director of his belief that the agency needed to field the Space Atmospheric Burst 

Reporting System (SABRS3). Id. at 6. SABRS3 is a satellite payload designed to 

detect a nuclear detonation in space. Id. at 4. On July 31, 2014, the appellant 

told the Director that he had approved plans developed by the Los Alamos 

National Laboratory to begin integrating SABRS3 on a U.S. Air Force (Air Force) 

Space Test Program satellite. Id. at 6. On August 8, 2014, the Director told the 

appellant that he had decided to stop funding SABRS3. Id. at 7.

¶3 On September 9, 2014, the agency advertised the position of Director for 

the Office of Nuclear Detonation Detection (NDD). Id. The appellant asserts 

that, on September 14, 2014, the Deputy Director announced that current 

employees in the appellant’s department would not be considered for an 

 

2 We have modified the initial decision to correct the administrative judge’s findings 

regarding exhaustion.
3

upcoming job posting and, if they desired an explanation of the policy, they 

should speak with him privately. Id. The appellant submitted his application for 

the position and was referred to the hiring manager. Id. The appellant was not 

selected and the vacancy announcement was canceled on or about October 27,

2014. Id. The appellant grieved his nonselection for the position on 

November 10, 2014. Id. at 7-8. The agency denied the grievance on 

January 7, 2015. Id.

¶4 On February 5, 2015, the appellant filed a complaint with the Office of 

Special Counsel (OSC), alleging that he was not allowed to compete for two job 

openings, including the NDD Office Director position. IAF, Tab 5 at 30, 39. In 

addition, he complained that the agency allowed his grievance to be closed 

without requiring either the Director or the Deputy Director to accept or dispute 

facts in the grievance alleging a prohibited personnel practice. Id. The appellant 

alleged that this was contrary to the agency’s grievance process. Id. at 30. On 

September 28, 2015, OSC closed the appellant’s file, and notified him of his right 

to request corrective action from the Board. Id. at 39-40. The appellant filed a 

timely appeal. IAF, Tab 1.

¶5 In an initial decision, the administrative judge found that the appellant 

exhausted his claims before OSC concerning personnel actions occurring on or 

before February 5, 2015, the date he filed his OSC complaint. IAF, Tab 9, Initial 

Decision (ID) at 3-4. That period of time includes the agency’s cancelling of the 

vacancy for the NDD Office Director position in October 2014. ID at 4. The 

administrative judge found no indication that the appellant had exhausted his 

remedies for, or that OSC had conducted an investigation into, any alleged 

personnel actions that occurred after February 5, 2015. Id. Regarding his 

nonselection for NDD Office Director, the administrative judge found that the 

appellant failed to nonfrivolously allege that he made a protected disclosure. ID 

at 4-7. Specifically, the administrative judge found that the appellant’s opinions 

on SABRS3 that he disclosed to management pertained to a policy dispute, rather 
4

than to one of the forms of protected disclosure set forth under 5 U.S.C. 

§ 2302(b)(8). ID at 5. The administrative judge also rejected the appellant’s 

retaliation claim under 5 U.S.C. § 2302(b)(9)(D) because he failed to produce 

evidence that the agency retaliated against him for refusing to obey an order that 

would require him to violate the National Defense Authorization Act (NDAA) of 

2008, Pub. L. No. 110-181, § 1065, 122 Stat. 3 (2008). ID at 5; IAF, Tab 5 

at 8-9. Finally, the administrative judge rejected the appellant’s claim that he 

had disclosed a substantial and specific danger to public health and safety. ID 

at 6. The administrative judge dismissed the appeal for lack of Board 

jurisdiction. ID at 6-7. The appellant filed a petition for review. Petition for 

Review (PFR) File, Tab 1.

ANALYSIS

¶6 To establish the Board’s jurisdiction over an appeal brought pursuant to the 

Whistleblower Protection Enhancement Act (WPEA), an appellant must exhaust 

his administrative remedies before OSC and make nonfrivolous allegations 3of the 

following: (1) he engaged in whistleblowing activity by making a protected 

disclosure 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 or activity 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). 5 U.S.C. §§ 1214(a)(3), 1221; 

Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). 

To satisfy the exhaustion requirement of 5 U.S.C. § 1214(a)(3) in an IRA appeal, 

an appellant must inform OSC of the precise ground of his charge of 

whistleblowing, giving OSC a sufficient basis to pursue an investigation that

 

3 Nonfrivolous jurisdictional allegations supported by affidavits or other evidence 

confer Board jurisdiction. Dick v. Department of Veterans Affairs, 290 F.3d 1356, 1361 

(Fed. Cir. 2002), overruled on other grounds, Garcia v. Department of Homeland 

Security, 437 F.3d 1322 (Fed. Cir. 2006) (en banc); Woodworth v. Department of the 

Navy, 105 M.S.P.R. 456, ¶ 14 (2007), aff’d, 329 F. App’x 281 (Fed. Cir. 2009).
5

might lead to corrective action. Ward v. Merit Systems Protection Board, 

981 F.2d 521, 526 (Fed. Cir. 1992).

¶7 The appellant argues that the administrative judge erred in finding that 

OSC’s investigation did not cover personnel actions that occurred after 

February 5, 2015. PFR File, Tab 1 at 10-12; ID at 4. The appellant explains that 

OSC’s close-out letter suggests that it investigated matters up to 

September 28, 2015. Id. at 10. He further explains that, although the 

administrative judge stated that his nonselection took place on October 27, 2014, 

when the vacancy announcement was canceled, ID at 2, a “second nonselection” 

took place in late May 2015, when he learned that another employee “was given 

an unauthorized preference or advantage and pre-selected for the subsequent 

re-posted NDD Director position.” PFR File, Tab 1 at 11. The appellant argues 

that OSC investigated the May 2015 nonselection, and that the agency’s actions 

after February 5, 2015, constitute further proof of retaliation. Id. at 11-12. 

¶8 While there is no other proof in the record that the appellant raised 

post-February 5, 2015 matters with OSC, see, e.g., IAF, Tab 5 at 30-38, OSC’s

September 28, 2015 close-out letter directly addresses his allegations regarding 

the agency’s ultimate selection and his own nonselection for the NDD Office 

Director position, IAF, Tab 1 at 23-24, Tab 5 at 39-40. Clearly, these matters

were exhausted. We thus correct the initial decision to the extent that the 

administrative judge drew an erroneous conclusion regarding the 

February 5, 2015 cut-off date.

¶9 Nevertheless, these matters do not change the outcome of the appeal, as the 

appellant failed to make a protected disclosure under 5 U.S.C. § 2302(b)(8). A 

protected disclosure is defined as:

a formal or informal communication or transmission, but does not 

include a communication concerning policy decisions that lawfully 

exercise discretionary authority unless the employee or applicant 

providing the disclosure reasonably believes that the disclosure 

evidences—
6

(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(a)(2)(D); see 5 U.S.C. § 2302(b)(8). A whistleblower need not 

prove that the matter he disclosed actually established any of the conditions 

described in section 2302(b)(8). Instead, he must make a nonfrivolous allegation 

that the matter he disclosed was one that a reasonable person in his position 

would believe evidenced any of these conditions. Applewhite v. Equal 

Employment Opportunity Commission, 94 M.S.P.R. 300, ¶ 12 (2003). 

¶10 The test to determine if the appellant had a reasonable belief that his

disclosure evidenced any of the types of wrongdoing identified in 5 U.S.C. 

§ 2302(b)(8) 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 of the government evidence[d]” such wrongdoing. Id. 

(citing Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999)). Determining

whether an employee had a reasonable belief that a law, rule, or regulation was 

violated turns on the facts of a particular case. Drake v. Agency for International 

Development, 543 F.3d 1377, 1381 (Fed. Cir. 2008). The Board, however,

requires an appellant to provide more than vague and conclusory allegations of 

wrongdoing. McCorcle v. Department of Agriculture, 98 M.S.P.R. 363, ¶ 21 

(2005).

¶11 Here, the appellant argued that management’s decision to discontinue 

funding of SABRS3 was a violation of law and created a substantial and specific 

danger to public health or safety. IAF, Tab 1 at 4-5, 8, 11-12, Tab 5 at 8-9, 

12-13. The appellant alleged that he disclosed the need to continue funding 

SABRS3 because the program was necessary to comply with section 1065 of the 

NDAA. IAF, Tab 1 at 4, 6, Tab 5 at 9. He reasserts this position on review. PFR 

File, Tab 1 at 6-9. Section 1065 of the NDAA states that the Secretary of 
7

Defense shall maintain the “capability for space-based nuclear detection at a level 

that meets or exceeds the level of capability as of” January 28, 2008. Although 

the appellant has asserted that he reasonably believed that the agency violated 

section 1065 of NDAA in deciding to cease implementing SABRS3, he has not 

provided any evidence to support his assertion. Under section 1065, the 

responsibility to maintain the “capability for space-based nuclear detection” falls 

to the Secretary of Defense. The appellant and his colleagues at the Department 

of Energy do not bear that responsibility, even if they have been tasked with and 

funded for supporting such an activity. PFR File, Tab 1 at 7, 23-24. In addition, 

as the administrative judge correctly found, the appellant himself conceded that 

policy makers in the Air Force, the United States Strategic Command 

(STRATCOM), and the Department of State determined whether SABRS3 was 

needed, and many, including senior members of STRATCOM and the Air Force, 

opposed the program. ID at 6; IAF, Tab 1, Further, section 1065 does not limit 

the Secretary of Defense to using any particular device or system to maintain 

space-based nuclear detection capability. A reasonable and disinterested person 

with knowledge of the facts known to and readily ascertainable by the appellant 

would not conclude that he was reporting a violation of law.

¶12 Although a disclosure of a substantial and specific danger to public health 

or safety is protected under 5 U.S.C. § 2302(b)(8), revealing a negligible, remote, 

or ill-defined peril that does not involve any particular person, place, or thing is 

not protected. See Johnston v. Merit Systems Protection Board, 518 F.3d 905, 

909-10 (Fed. Cir. 2008). In Chambers v. Department of the Interior, 515 F.3d 

1362 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal Circuit identified 

a number of factors that the Board might consider in determining whether 

disclosing a danger to public health or safety is sufficiently substantial and 

specific to warrant protection under 5 U.S.C. § 2302(b)(8):

One such factor is the likelihood of harm resulting from the danger. 

If the disclosed danger could only result in harm under speculative or 
8

improbable conditions, the disclosure should not enjoy protection. 

Another important factor is when the alleged harm may occur. A 

harm likely to occur in the immediate or near future should identify a 

protected disclosure much more than a harm likely to manifest only 

in the distant future. Both of these factors affect the specificity of 

the alleged danger, while the nature of the harm—the potential 

consequences—affects the substantiality of the danger.4

Id. at 1369 (emphasis added); see also Chambers v. Department of the Interior, 

602 F.3d 1370, 1376 (Fed. Cir. 2010); see, e.g., Miller v. Department of 

Homeland Security, 111 M.S.P.R. 312, ¶ 19 (2009). We do not question that a 

delayed response to a nuclear detonation in space would imperil public health and 

safety, but the appellant has not shown that such an occurrence is more than a

possibility occurring at an undefined point in the future.5 Cf., e.g., Johnston, 

518 F.3d at 910 (finding that the appellant disclosed a specific and substantial 

danger “not only because training exercises take place under extreme weather 

conditions and routinely involve the use of live fire and explosives, but also 

because a series of accidents had occurred during such exercis es in the past”).

¶13 The record shows that decisions pertaining to continuing SABRS3 followed 

considerable interagency consultation and debate in the context of broader 

programmatic discussions. IAF, Tab 1 at 7-13, Tab 5 at 12-13. The 

administrative judge thus found that the narrow exception for policy disputes 

 

4

The appellant argues that Chambers is “outdated” and was “legislatively rejected” by 

Congress with the passage of the WPEA, which “reaffirmed its intent to protect all

disclosures that a whistleblower reasonably believes evidence” any of the conditions set 

forth in 5 U.S.C. § 2302(b)(8). PFR File, Tab 1 at 18 (italics in original). Although the 

WPEA broadened the types of disclosures that might be protected under the statute, the 

Chambers factors go to the reasonableness of an employee’s belief that the matter he is 

disclosing represents a condition described by the statute. Moreover, our reviewing 

court still cites the Chambers factors. See, e.g., Yeh v. Merit Systems Protection Board, 

527 F. App’x 896, 901 (2013).

5

The appellant noted that he cannot disclose some information in support of his 

argument because it is classified for reasons of national security. IAF, Tab 5 at 9. 

Such information, however, would have been considered by the policymakers who 

debated whether or not to continue funding the program, and ultimately rejected it.
9

foreclosed the appellant from having made a protected disclosure. ID at 5. The 

Board has found that, when the alleged whistleblower is expressing disagreement 

with fairly debatable policy decisions, his disclosures do not fall within those

defined as protected under 5 U.S.C. § 2302(b)(8). Cf. O’Donnell v. Department 

of Agriculture, 120 M.S.P.R. 94, ¶ 14 (2013) (holding that the appellant’s alleged 

protected disclosure was “exactly the type of fairly debatable policy dispute that 

does not constitute gross mismanagement”), aff’d, 561 F. App’x 926 (Fed. Cir. 

2014). The appellant asserts that the administrative judge mischaracterized the 

nature of the debates over discontinuing funding for SABRS3. PFR File, Tab 1 

at 6-9, 12-15. He further asserts that the fact that discontinuing SABRS3 was 

debated on various occasions does not mean that the decision not to fund the 

program was debatable because its cancellation would violate section 1065 of the 

NDAA. Id. at 15. The appellant’s argument is unavailing because, as explained 

above, he failed to nonfrivolously allege that the agency violated section 1065.

¶14 The appellant argues that the administrative judge improperly cited 

O’Donnell because that case pertains to gross mismanagement and not to a

substantial and specific danger to public health or safety. Id. at 16-17. The

appellant also argues that the legislative history of the WPEA criticized a case 

upon which O’Donnell relies, White v. Department of the Air Force, 391 F.3d 

1377, 1382 (Fed. Cir. 2004). PFR File, Tab 1 at 16 (citing S. Rep. No. 112-155,

at 10 n.37 (2012)). In Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 9 

(2015), however, the Board clarified the issues raised in the legislative history 

and concluded that “if an employee has a reasonable belief that the disclosed 

information evidences the kinds of misconduct listed in section 2302(b)(8), rather 

than a policy disagreement, [the disclosure] is protected.” Here, the appellant has 

failed to nonfrivolously allege that his own belief that canceling the SABRS3 

program posed a substantial and specific danger to public health or safety was a 

reasonable one.
10

¶15 In the proceeding below, the appellant also asserted that the agency 

retaliated against him for refusing to obey an order that would require him to 

violate the NDAA. IAF, Tab 1 at 4, Tab 5 at 9; see 5 U.S.C. § 2302(b)(9)(D) (an 

agency cannot “take or fail to take, or threaten to take or fail to take, any 

personnel action against any employee or applicant for employment . . . for 

refusing to obey an order that would require the individual to violate a law”). 

The administrative judge found that this claim failed because the appellant did 

not produce any evidence of such retaliation. ID at 5. On review, the appellant 

asserts that the initial decision is erroneous in this respect and cites comments 

that the Director made regarding the decision to cancel or continue the SABRS3 

program. PFR File, Tab 1 at 27-28. These comments, however, do not suggest 

any retaliatory motive. The appellant has not substantiated his allegation that the 

agency retaliated against him for his opposing the discontinuation of the SABRS3

program.

¶16 The appellant additionally argues on review that the administrative judge

held him to an erroneous jurisdictional standard when he stated that 

“[n]onfrivolous jurisdictional allegations supported by affidavits or other 

evidence confer Board jurisdiction.” Id. at 28; ID at 4-5. The appellant asserts

that the proper and more recent standard requires only that he “plead allegations 

of fact that, if proven, could show that he made a protected disclosure and that the 

disclosure was a contributing factor in a personnel action” and that “[a]ny doubt 

or ambiguity as to whether [he] made nonfrivolous jurisdictional allegations 

should be resolved in favor of finding jurisdiction.” PFR File, Tab 1 at 28. He 

further asserts that the veracity of any allegations he made was immaterial at this 

stage of the proceeding, and thus any submission of proof would be unnecessary. 

Id. at 29. The standard to which the appellant objects, however, is not the 

Board’s jurisdictional standard, but rather, the Board’s definition of a 

nonfrivolous allegation, which has been codified in the Board’s regulations: “An 

allegation generally will be considered nonfrivolous when, under oath or penalty 
11

of perjury, an individual makes an allegation that: (1) Is more than conclusory;

(2) Is plausible on its face; and (3) Is material to the legal issues in the appeal.” 

5 C.F.R. § 1201.4(s). The administrative judge did not err.

¶17 Finally, the appellant asserts that he has new and material evidence, namely 

information he received in 2013 from a colleague who overheard the Director 

telling the Deputy Director that he intended “to find ways not to fund 

[SABRS3].” PFR File, Tab 1 at 29-31. When he filed his OSC complaint, he 

asserts, he did not include this information because the colleague told him at that 

time that she could not remember certain details about the conversation she was 

recounting. Id. at 30. She later remembered those details and notified the 

appellant. Id. The appellant argues that the information was thus unavailable to 

him when he filed his OSC complaint, and he asks the Board to consider it now. 

Id. at 30-31. Even if the appellant had submitted this information to OSC for 

consideration with his complaint, however, he has offered no evidence in support 

of this newly raised allegation. See 5 C.F.R. § 1201.4(s). Therefore, the Board 

will not consider it.

¶18 Accordingly, we affirm the initial decision as modified.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to 

request review of this final decision by the U.S. Court of Appeals for the Federal 

Circuit.

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. 

Dec. 27, 2012). If you choose to file, be very careful to file on time. The court 

has held that normally it does not have the authority to waive this statutory 

deadline and that filings that do not comply with the deadline must be dismissed. 

See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
12

If you want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of this final decision by the U.S. Court of Appeals for the 

Federal Circuit or any court of appeals of competent jurisdiction. The court of 

appeals must receive your petition for review within 60 days after the date of this 

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose 

to file, be very careful to file on time. You may choose to request review of the 

Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other 

court of appeals of competent jurisdiction, but not both. Once you choose to seek 

review in one court of appeals, you may be precluded from seeking review in any 

other court.

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in 

title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

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, and 11. Additional 

information about other 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. 

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
13

Merit Systems Protection Board neither endorses the services provided by any 

attorney nor warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board