                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     VAUGHN HOEFLIN STANDLEY,                        DOCKET NUMBER
                 Appellant,                          DC-1221-16-0168-W-1

                  v.

     DEPARTMENT OF ENERGY,                           DATE: January 3, 2017
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 co nsistent 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 i nitial 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.
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     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 tw o 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 3 of 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] reasonab ly
      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 SAB RS3 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 ac tion” 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 imma terial 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 di smissed.
      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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
