Case: 21-2149 Document: 16 Page: 1 Filed: 02/16/2022
United States Court of Appeals
for the Federal Circuit
______________________
VAUGHN HOEFLIN STANDLEY,
Petitioner
v.
DEPARTMENT OF ENERGY,
Respondent
______________________
2021-2149
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-20-0788-W-1.
______________________
Decided: February 16, 2022
______________________
VAUGHN HOEFLIN STANDLEY, Gainesville, VA, pro se.
ALBERT S. IAROSSI, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BRIAN M.
BOYNTON, MARTIN F. HOCKEY, JR., FRANKLIN E. WHITE, JR.
______________________
Before MOORE, Chief Judge, PLAGER and O’MALLEY,
Circuit Judges.
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2 STANDLEY v. ENERGY
PLAGER, Circuit Judge.
Dr. Vaughn H. Standley 1 at the time this case arose
was employed by the U.S. Department of Energy (hereinafter “DOE”) in its National Nuclear Security Administration. He petitions for review of the Merit Systems
Protection Board’s (“MSPB” or “Board”) decision denying
his request for corrective action in an individual right of
action appeal. 2 We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
Petitioner alleges that the DOE retaliated against him
when he made repeated attempts to correct what he considered a seriously erroneous agency decision related to the
mission of providing space-based nuclear detection. Unsuccessful at the agency level and convinced that the
agency thereafter retaliated against him for attempting to
ensure our continued nuclear detection capability as required by law, Dr. Standley made repeated attempts to get
the Merit Systems Protection Board to correct the agency.
His attempts failed there as well.
As we shall explain, this case is his latest attempt to
get help—including from this court—in his cause. Because
the Board again ruled against him, we must decide
whether the Board properly denied corrective action on the
record presented.
1 Some of the records in the case refer to Standley as
“Mr.,” some as “Dr.” There are references in the agency
email exchanges indicating that Standley was referred to
by the agency as “Dr. Standley”—we adopt that as his
proper title.
2 Standley v. Dep’t of Energy, No. DC-1221-20-0788-
W-1, 2021 WL 2290504 (M.S.P.B. June 1, 2021).
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STANDLEY v. ENERGY 3
BACKGROUND
By statute, the Secretary of Defense is responsible for
our space-based nuclear detection capability. Section 1065
of the National Defense Authorization Act of 2008 provides
that “[t]he Secretary of Defense shall maintain the capability for space-based nuclear detection at a level that meets
or exceeds the level of capability as of the date of the enactment of this Act.” 3
Although this statutory responsibility was assigned to
the Secretary of the Department of Defense (“the Secretary”), the DOE traditionally has assisted the Secretary in
this mission. To that end, the DOE provided a system of
space-based sensors for nuclear detection, referred to as
the Space and Atmospheric Burst Reporting System or
SABRS. The Secretary then included SABRS on its Air
Force satellites.
While this division of labor sounds straightforward in
theory, apparently it has not been straightforward in practice, particularly with respect to funding. This is likely, in
no small part, because, while the Secretary bears legal responsibility under § 1065, the statute
does not prescribe any particular means or technology by which space-based nuclear detection capabilities must be maintained. Rather, it is only
violated if detection capability falls below a pre-set
standard, and a National Security Council (“NSC”)
interagency policy committee has the discretion to
decide how best to maintain that standard.
Standley v. Merit Sys. Prot. Bd., 715 F. App’x 998, 1002
(Fed. Cir. 2017) (internal citation omitted).
Thus, while the Secretary in the past has relied on the
DOE’s SABRS program to assist in carrying out its
3 Pub. L. No. 110-181, § 1065,
122 Stat. 3, 324 (2008).
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4 STANDLEY v. ENERGY
mission, § 1065 does not require that the Secretary do so.
Similarly, nothing in the statute requires that the DOE
continue to provide its SABRS program to the Secretary.
With this background, we turn to the particular facts
of this case. This requires a look at a complex of government agency decisional levels, and serious allegations by
Dr. Standley spanning several years, amidst a veritable alphabet soup of governmental abbreviations.
At the time of the events at issue, Petitioner Dr. Standley, who appears before us pro se, was a General Engineer
employed in the DOE’s National Nuclear Security Administration (“NNSA”), Office of Defense Nuclear Nonproliferation Research and Development (“DNN”), Office of
Nuclear Detonation Detection (“NDD”).
The workplace hierarchy involved in the case, in ascending order of rank, was: General Engineer Dr. Vaughn
Standley; NDD Director Tom Kiess; DNN Associate Assistant Deputy Administrator Edward Watkins; DNN Assistant Deputy Administrator Rhys Williams; DNN Deputy
Administrator Anne Harrington; and NNSA Deputy Administrator Madelyn Creedon. 4 Prior to May 2015, the position of Dr. Standley’s immediate superior, the NDD
Director, was vacant, so Dr. Standley reported directly to
Watkins in his role as DNN Assistant Deputy Administrator.
Dr. Standley worked on the third iteration of the
SABRS program—SABRS3. He contends that over several
years he sought to ensure that the program was funded and
supported, in no small part because Dr. Standley believed
this was legally necessary under § 1065. He alleges that,
4 Watkins replaced Williams as DNN Assistant Deputy Administrator in July 2016. David LaGraffe replaced
Watkins as DNN Associate Assistant Deputy Administrator in April 2017.
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STANDLEY v. ENERGY 5
in contrast, his superiors attempted to block funding of and
his work on SABRS3, despite—according to Dr. Standley—
also believing that the DOE was legally responsible under
§ 1065. As noted, these allegations span several years, and
involve several layers of officialdom; we recount the most
salient facts below. 5
On August 8, 2014, Dr. Standley emailed Williams,
Watkins, and Kiess, indicating that Dr. Standley was studying how to include SABRS3 on an existing Air Force satellite. Williams responded via email:
We need to talk. I do not, repeat do not, support
NNSA being involved in any way, shape or form
with a free flier. We provide the payload. Period.
If DoD can’t get it’s [sic] act together to support the
existing requirement, it’s not ours to fix. We hold
no requirements. And SABRS3 hosting and data
down link is a kluge. I don’t want NNSA stuck paying for this for the next 20 years—and we will. I
am deciding now whether to stop SABRS3 funding
and redirect. I plan to provide a decision brief to
NA1/2 in the near future.
Appendix (“A”) 3. In response, Dr. Standley agreed that it
was a “total kluge,” and noted that “[e]ach and every attempt by the community over the last 10 years to get them
[the Air Force] to pay or accept funds/direction” had failed.
Id. He also stated: “Dealing with that has been adhoc/ugly. The whole hosted-payload business is messy.
Personally, I feel well equipped to deal with it but someone
(you) will decide how much mess we tolerate.” Id.
Considerably later, during the week of March 26, 2015,
Dr. Standley participated in a meeting with Air Force representatives to finalize a joint brief for the House Armed
5 A more complete account is found in the record before the Board.
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6 STANDLEY v. ENERGY
Services Committee (“HASC”). Dr. Standley requested
that the brief include a statement that § 1065 required U.S.
Nuclear Detection System (“USNDS”) capability to be
maintained in the future. An Air Force representative
emailed Williams and Creedon, informing them of Dr.
Standley’s request, which was approved. Williams forwarded the email to Dr. Standley and others with the note
“FYSA,” which presumably meant “for your situation
awareness.”
Later still, in or around July 2015, Williams agreed to
a Department of Defense (“DOD”) request to suspend executive-level decision meetings of the USNDS Board of Directors, pending further guidance from the National Security
Council on how to structure the USNDS. On July 29, 2015,
Dr. Standley emailed Williams, asking him to reconsider
his decision because it was necessary for the Board to
“press a DOD decision to follow-through with funding the
necessary ground infrastructure to support SABRS in the
long term.” A. 5. Williams thanked Dr. Standley for his
input and stated he would consider it. Nevertheless, on
September 18, 2015, Williams instructed Dr. Standley to
cease funding ground segment support related to the
USNDS program.
Shortly thereafter, on September 23, 2015, Dr. Standley sent an email entitled “Obstruction of Public law 110-
118, NDAA 2008, Maintenance of Space-based Nuclear
Detonation Detection System” to Rose Gottemoeller, Under
Secretary of State for Arms Control and International Security Affairs. Dr. Standley copied the email to the HASC
Chairman, to Harrington, to Department of Defense representatives, and to the U.S. Office of Special Counsel. In the
email, Dr. Standley claimed that Williams was obstructing
compliance with § 1065.
Harrington forwarded that email to Williams, asking
him to “fill in whatever background you have on this.” A.
7. Williams responded:
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STANDLEY v. ENERGY 7
Dr. Standley raises, what he believes, are serious
issues. That said, in no way has DNN R&D or myself obstructed implementation of US Law. In fact,
we (NNSA) has [sic] increased funding for this important area and have driven the interagency to
keep this a priority—to meet US law.
A. 7.
Following several earlier unsuccessful attempts to get
the DOE position changed, on August 6, 2020, Dr. Standley
filed the instant individual right of action appeal with the
Board. He alleged that the DOE and its employees, Williams and Watkins, retaliated against him for his efforts to
change the DOE policy by not selecting him for any of three
DOE Director positions posted in 2014, 2015, and 2017.
Specifically, he alleged that Williams and Watkins believed
that the DOE was responsible under § 1065, and that Dr.
Standley was engaging in protected whistleblowing when
he opposed efforts to defund and cease work on the
SABRS3 program. Dr. Standley contends that they subsequently retaliated against him for his whistleblowing by
not selecting him for any of the three DOE Director positions.
The assigned MSPB administrative judge denied corrective action, finding that Dr. Standley failed to meet his
burden of proving that the agency personnel perceived him
as a whistleblower. In the absence of a petition for review
at the MSPB, the decision became final on July 6, 2021.
Dr. Standley timely petitioned for this court’s review.
DISCUSSION
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). Substantial evidence “means such relevant
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8 STANDLEY v. ENERGY
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Consol. Edison Co. v. Nat’l Labor
Rels. Bd.,
305 U.S. 197, 229 (1938). “[T]he standard is not
what the court would decide in a de novo appraisal, but
whether the administrative determination is supported by
substantial evidence on the record as a whole.” Parker v.
U. S. Postal Serv.,
819 F.2d 1113, 1115 (Fed. Cir. 1987).
On appeal, Dr. Standley contends that the Board failed
to consider certain evidence indicating that the DOE, Williams, and Watkins perceived Dr. Standley’s activities to
be protected, and that the Board also failed to consider certain evidence indicating that the DOE acted fraudulently.
I
First, Dr. Standley argues that the Board failed to consider certain “direct” evidence supporting his position—
namely, the September 2015 email from Williams to Harrington and the DOE’s annual congressional budgetary requests over several years, which consistently referenced
§ 1065 in requesting funds. 6
Dr. Standley contends that this evidence reflects Williams’s, Watkins’s, and the DOE’s perceptions that the
DOE was required to continue the SABRS3 program to
comply with § 1065. This is not an unreasonable argument, but it is one that the Board expressly considered and
rejected in light of the evidence. See A. 20 (discussing
email), A. 14–15 (discussing yearly budgetary requests).
As the Board explained, the email from Williams to
Harrington demonstrated that Williams disagreed with
Dr. Standley’s views and instead believed that the DOE
was continuing to support an important area of law, albeit
6 Although Dr. Standley contends that the Board
failed to consider this evidence, he admits that the Board
considered the budgetary requests. See Opening Br. at 6.
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STANDLEY v. ENERGY 9
one that was not the DOE’s sole responsibility. In other
words, as Williams stated in his email, the issue was one of
interagency concern. Similarly, as the Board explained,
the statutory references in the budgetary requests did not
necessarily equate to a belief that the agency was bound by
that statute.
A different fact-finder might have viewed the email and
budgetary requests as supporting Dr. Standley’s position,
but, given the record, because substantial evidence supports the Board’s conclusion we cannot reverse or vacate it.
“[W]here two different, inconsistent conclusions may reasonably be drawn from the evidence in record, an agency’s
decision to favor one conclusion over the other is the epitome of a decision that must be sustained upon review for
substantial evidence.” In re Jolley, 308 F.3d 1317, 1329
(Fed. Cir. 2002).
II
Second, Dr. Standley argues that the Board failed to
consider certain “indirect” evidence—for example, Williams’s statement about “meet[ing] US law”; Dr. Standley’s
request to reference § 1065 in the March 2015 HASC briefing; and Dr. Standley’s September 2015 email. Dr. Standley contends that, given the “direct” evidence mentioned
above, this “indirect” evidence supports his position. But
again, the Board expressly considered this evidence and
simply reached a different conclusion. See A. 19 (concerning Williams’s statement about “meet[ing] US law”), A. 19–
20 (concerning the HASC briefing), A. 20–21 (concerning
the September 2015 email).
As before, substantial evidence supports the Board’s
conclusion on each point. Williams’s statement about
meeting U.S. law was made in conjunction with his express
belief that it was an interagency concern—not a matter
solely for the DOE. Dr. Standley’s HASC briefing request
was not only unopposed but honored, which made sense
given the Department of Defense’s involvement in the
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10 STANDLEY v. ENERGY
briefing and ultimate legal responsibility under § 1065.
Similarly, Dr. Standley’s September 2015 email certainly
demonstrated his own belief that the DOE was legally responsible under § 1065 via SABRS3, but Williams’s followup response to Harrington indicated a consistent belief
that the DOE was not responsible in that manner.
The evidence supports the agency’s position that the
SABRS3 program was part of the DOE’s mission to assist
the Secretary of Defense. Dr. Standley’s suggested alternative conclusion is certainly possible, but it does not detract from the substantial evidence supporting the Board’s
conclusion. As before, we cannot reverse or vacate on this
record given the standard of review.
III
Third, Dr. Standley contends that the Board failed to
cite Watkins’s affidavit and therefore failed to consider any
of Watkins’s sworn statements. Dr. Standley pinpoints
Watkins’s affidavit statement that “SABRS-3 hosting and
gaps were the topic of on-going undersecretary-level Interagency Policy Committee (IPC) meetings.” Opening Br. at
14 (quoting A. 32). Dr. Standley believes this statement
demonstrates that Watkins and the DOE perceived the
SABRS3 program as necessary for § 1065 compliance.
The Board found that Dr. Standley “failed to present
preponderant evidence that Watkins perceived him as a
whistleblower with respect to the allegations in this appeal.” A. 22. While the Board could have viewed Watkins’s
statement as supporting Dr. Standley’s position, the Board
also could have viewed Watkins’s statement as it did—supporting the DOE’s position that SABRS3 was not just an
issue for the DOE, but instead had to be sorted out by the
Interagency Policy Committee, as Watkins expressly indicated in his affidavit. See A. 32. Because the Board’s conclusion was supported by substantial evidence, we cannot
disturb it.
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STANDLEY v. ENERGY 11
In a similar vein, Dr. Standley faults the Board for its
statement that he “did not put forth particular evidence
and argument regarding Watkins’ alleged perception of
him as a whistleblower with respect to any of the alleged
whistleblowing in this appeal.” Opening Br. at 7 (quoting
A. 22). Dr. Standley asserts that, before the Board, he
highlighted Watkins’s statement that Dr. Standley’s allegedly protected activities were “widely known.” Opening Br.
at 7.
But Watkins never made this statement, as Dr. Standley admits on the very same page. See id. Watkins referred
to the “subject of potential gaps”—not Dr. Standley’s actions—as “widely known.” A. 32. That such gaps existed
and were widely known does nothing to prove Dr. Standley’s contention as to Watkins’s perception of Dr. Standley’s actions. Indeed, Watkins had no knowledge of the
majority of Dr. Standley’s actions. See A. 32–33. Further,
in his submissions to the Board, Dr. Standley admitted
that Watkins’s affidavit was largely silent on these points,
but Dr. Standley nevertheless contended that Watkins purposely obfuscated the truth.
While Dr. Standley’s interpretation of Watkins’ statements is possible, the Board’s contrary conclusion is again
supported by substantial evidence. Substantial evidence
supports the finding that Watkins’s consistent belief was
that the coverage gaps were an interagency issue—not one
solely for the DOE. Again, we cannot reverse or vacate on
this record given the standard of review.
IV
Fourth and finally, Dr. Standley contends that the
Board failed to consider facts indicating that the DOE
acted fraudulently by misrepresenting its stance on § 1065
to avoid jurisdiction while simultaneously seeking funding
from Congress based on § 1065. Dr. Standley highlights
the DOE’s annual congressional budgetary requests referencing § 1065, despite the agency’s litigation position
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12 STANDLEY v. ENERGY
before the Board and this court that the DOE bore no legal
responsibility under § 1065.
Again, the Board considered this argument and rejected it, finding that the mere mention of the statute in a
budgetary request was insufficient to support Dr. Standley’s claims. Given the record and Dr. Standley’s arguments on appeal, we agree. That the DOE referenced the
statute when seeking funds to support the Secretary of Defense’s legal obligation does not necessarily mean that the
DOE viewed that obligation as its own. Relatedly, since
there were no findings of fraud, we cannot endorse Dr.
Standley’s argument that the Board should have viewed
Williams in a less favorable light. As before, the Board’s
decision was supported by substantial evidence.
SUMMARY
Given the critical importance of the military program
at issue, as well as Dr. Standley’s well-intentioned beliefs
about the mission, and his pro se status throughout this
extended series of appeals, we have considered his petition
in the best light the facts and law allow and in considerable
detail. This is the third decision by this court (and the
fourth review before the MSPB) arising from the government’s decision regarding funding and continuation of
DOE’s SABRS program.
In the two previous cases before this court, decided by
nonprecedential decisions, Dr. Standley presented alternative theories for the reasons he should have been treated
as a whistleblower. In this, the third theory, he tried to
prove that the deciding officials believed all along that he
was right, but ruled against him nevertheless. As in the
previous cases, his effort to convert a government policy decision with which he disagreed into the appearance of an
intended wrongful use of government property was unavailing.
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STANDLEY v. ENERGY 13
The Board’s decision was supported by substantial evidence and was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or
obtained without procedures required by law, rule, or regulation having been followed. We have considered Dr.
Standley’s remaining arguments and find them unpersuasive. In sum, we believe that the record shows conclusively
that Dr. Standley has had more than his day in court.
CONCLUSION
For the foregoing reasons, we affirm the Board’s decision.
AFFIRMED
COSTS
No costs.
