Case: 21-2190 Document: 28 Page: 1 Filed: 01/18/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KEVIN AUBART,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2021-2190
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-1221-20-0520-W-1.
______________________
Decided: January 18, 2022
______________________
KEVIN AUBART, Honolulu, HI, pro se.
JEFFREY GAUGER, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by TRISTAN L.
LEAVITT, KATHERINE MICHELLE SMITH.
______________________
Before MOORE, Chief Judge, PROST and TARANTO, Circuit
Judges.
Case: 21-2190 Document: 28 Page: 2 Filed: 01/18/2022
2 AUBART v. MSPB
PER CURIAM.
Kevin Aubart filed an Individual Right of Action (IRA)
appeal with the Merit Systems Protection Board, alleging
that his employer, the U.S. Department of the Army, en-
gaged in prohibited retaliation for his whistleblowing. Spe-
cifically, he asserted that the Army created a hostile work
environment and proposed to remove him in retaliation for
disclosing that three Army employees made materially
false statements in various official proceedings. The Board
dismissed the challenge, concluding that Mr. Aubart failed
to nonfrivolously allege a disclosure protected under the
Whistleblower Protection Act (WPA). Supplemental Ap-
pendix (SAppx) 1–20; see also Aubart v. Dep’t of the Army,
No. SF-1221-20-0520-W-1,
2020 WL 6269161 (M.S.P.B.
Oct. 23, 2020). Mr. Aubart appeals. We affirm.
I
When the events in question began, Mr. Aubart worked
as a Supervisory Information Technology Specialist for the
Army’s Regional Cyber Center-Pacific (RCC-P) group,
which was located at Fort Shafter, Hawaii. On February
10, 2017, Lieutenant Colonel Christopher Siegrist, the di-
rector of the RCC-P group, sent Mr. Aubart and his co-
workers a memorandum under the subject heading “Tem-
porary Duty Relocation” (Siegrist Memorandum), which
stated in pertinent part:
1. This memorandum is to inform you of a tempo-
rary change in your duty station from the Regional
Cyber Center Pacific (RCC-P), Fort Shafter, Ha-
waii to BLDG 1500 Schofield Barracks effective
February 18, 2017.
2. The RCC-P will undergo major renovations
within the office and building. As a result, you will
be temporarily reassigned to BLDG 1500 Schofield
Barracks, where you will continue to perform the
same essential job functions that you now perform.
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AUBART v. MSPB 3
We anticipate the completion in 14 weeks and will
provide you sufficient notice in returning to Fort
Shafter.
3. If you have questions or concerns about this tem-
porary relocation, please address them to . . . .
SAppx 43. On February 18, 2017, the RCC-P group’s work
began at Schofield, a separate Army base 19.1 miles from
Fort Shafter. But despite Lt. Col. Siegrist’s original fore-
cast of fourteen weeks for the renovation, the RCC-P group
worked at Schofield for more than thirty-eight weeks, until
November 14, 2017. During that time, the RCC-P employ-
ees’ job duties at Schofield were essentially the same as
what they had been at Fort Shafter.
In response to the transfer to Schofield, Mr. Aubart and
other RCC-P employees requested per diem mileage reim-
bursement for their additional commuting expenses, but
Lt. Col. Siegrist denied those requests. Mr. Aubart then
filed an appeal with the United States Civilian Board of
Contract Appeals (CBCA). An Army pleading in that pro-
ceeding (signed by Army attorney Rachael Orejana) con-
tains two statements referring to Schofield as Mr. Aubart’s
“official duty station.” SAppx 94 (“On or about February
10, 2017, LTC Christopher Siegrist . . . notified RCC-P em-
ployees, including [Mr. Aubart], that their official duty sta-
tion would be changed for a period of approximately
fourteen weeks.”); SAppx 95 (“It is well-settled that an em-
ployee who is engaged in commuting between his or her
residence and official duty station is performing personal
business, not official business, for the government, and the
employing agency is not required to pay the transportation
costs that the employee incurs while commuting.”). Simi-
lar language appears in an attached sworn declaration
from Lt. Col. Siegrist. SAppx 98–99 (“On or about Febru-
ary 10, 2017, I notified RCC-P employees, via written mem-
orandum, that their official duty station would be changed
for a period of approximately fourteen weeks and that their
Case: 21-2190 Document: 28 Page: 4 Filed: 01/18/2022
4 AUBART v. MSPB
new duty station would be located at Building 1500 on
Schofield Barracks, Oahu, Hawaii.”). The CBCA denied
Mr. Aubart’s claim on September 11, 2017, and Mr. Aubart
withdrew the appeal of the denial he filed in this court.
On December 28, 2017, Mr. Aubart initiated another
proceeding: He filed a civil complaint against the Secretary
of the Army in the District Court for the District of Hawaii,
asserting that he was entitled to compensation for his
travel expenses because his relocation to Schofield quali-
fied as Temporary Duty (TDY)—as opposed to a Permanent
Change of Station (PCS) or Temporary Change of Station
(TCS)—under the Department of Defense’s Joint Travel
Regulations. See Aubart v. McCarthy, No 1:17-cv-00611,
2019 WL 3892408, at *1, *3 (D. Haw. Aug. 19, 2019). The
Secretary moved for summary judgment, arguing in rele-
vant part that Mr. Aubart would not be eligible for compen-
sation for his travel expenses, because his permanent duty
station (or official duty station) had changed during the
time he worked at Schofield (whether classified either as a
permanent change of station or as a temporary change of
station).
Id. at *3; see SAppx 115–27 (memorandum in sup-
port of motion for summary judgment). As part of the sum-
mary judgment briefing, the Secretary provided a sworn
declaration from RCC-P Deputy Director Scott Chilson
stating that “[o]n or about February 10, 2017, Lieutenant
Colonel Christopher M. Siegrist provided notice to employ-
ees of RCC-P who worked at Building 520 at Fort Shafter
that their duty station was being moved to Schofield Bar-
racks because the office at Fort Shafter was no longer avail-
able.” SAppx 55–57 (dated July 17, 2019).
The district court granted the Secretary’s motion on
August 19, 2019. Aubart,
2019 WL 3892408, at *6. The
court agreed with Mr. Aubart that the Siegrist Memoran-
dum “could have been drafted with greater clarity,” but it
nevertheless concluded that the “undisputed record sup-
ports the conclusion that [Mr. Aubart’s] permanent duty
station was changed from Fort Shafter to Schofield
Case: 21-2190 Document: 28 Page: 5 Filed: 01/18/2022
AUBART v. MSPB 5
Barracks, for the period of February 18, 2017 through No-
vember 14, 2017” and that, as a result, he “is not entitled
to reimbursement for the transportation costs incurred.”
Id. at *5–6. Mr. Aubart appealed to the Ninth Circuit,
which affirmed in December 2020. Aubart v. McCarthy,
830 F. App’x 959, 960 (9th Cir. 2020).
After the district court’s ruling but during the Ninth
Circuit appeal, on November 7, 2019, Mr. Aubart wrote to
Lt. Col. Heath Giesecke, the new RCC-P director, stating:
“I am the Whistleblower, but most RCCP civilians know
Ms[.] Orejana lied about the permanent change of station
to keep us from getting reimbursed.” SAppx 58. Similarly,
on April 7, 2020, Mr. Aubart wrote to Brigadier General
Jan Norris, stating:
In 2017, Army lawyer Rachael Orejana and former
RCCP Director LTC Siegrist made false statements
in court documents claiming LTC Siegrist notified
RCCP employees of a PCS via a “Siegrist Memo-
randum” despite the fact that the Siegrist Memo-
randum clearly refers to a TDY, not a PCS. The
purpose of these statements was to justify denial of
otherwise lawful TDY claims. . . . In 2019, Ms[.]
Orejana admitted in [a] sworn statement that the
Siegrist memorandum never referred to a PCS.
Despite Ms[.] Orejana’s admission, Army lawyers
continue to assert in court documents that the
Siegrist Memorandum notified RCCP employees of
a PCS . . . 1 Army lawyers solicited a false sworn
statement from RCCP Deputy Director, Scott
1 Mr. Aubart is apparently referring to a February
11, 2019 submission Ms. Orejana made to the Merit Sys-
tems Protection Board in a separate case involving him, in
which she made the verifiably true statement that she
“never referred to a PCS in the [CBCA] pleadings.” SAppx
101–09; see SAppx 94–97 (CBCA pleading in question).
Case: 21-2190 Document: 28 Page: 6 Filed: 01/18/2022
6 AUBART v. MSPB
Chilson, which claimed the Siegrist Memorandum
notified RCCP employees “that their duty station
was being moved to Schofield Barracks because the
office at Fort Shafter was no longer available.” The
obvious purpose of this statement was to further
the Army’s false narrative of a PCS. The statement
is patently false, not only because it falsely claims
a PCS, but also because the Fort Shafter office was
always intended to be, and obviously continues to
be, available.
SAppx 59. Those are the disclosures Mr. Aubart now as-
serts constituted protected whistleblowing.
On May 1, 2020, RCC-P Deputy Director Chilson sent
Mr. Aubart a Notice of Proposed Removal for conduct un-
becoming a supervisor. SAppx 71–75. On May 26, 2020,
Mr. Aubart filed a whistleblower retaliation complaint
with the Office of Special Counsel (OSC), pursuant to 5
U.S.C. § 1214(a)(1)(A), seeking corrective action for alleged
“prohibited personnel practice[s]” by the Army, namely, re-
taliation for whistleblowing in violation of the WPA, codi-
fied as relevant at 5 U.S.C. § 2302(b)(8), (9). The OSC
complaint is not in the record, but the Board decision now
before us indicates that, in the complaint, Mr. Aubart
claimed that his employers had retaliated by creating a
hostile work environment and suggesting his removal in
response to his emails to Lt. Col. Giesecke and Brig. Gen.
Norris—which he alleged constituted reports that Ms. Ore-
jana, Lt. Col. Siegrist, and Deputy Director Chilson vio-
lated 18 U.S.C. § 1001 (prohibiting materially false
statements in connection with official proceedings) during
the CBCA and district court proceedings. SAppx 7–13.
OSC closed its investigation without action. Mr. Aubart
then filed an IRA appeal with the Board. SAppx 35–76; see
also SAppx 90–149 (responses to order to provide evi-
dence).
Case: 21-2190 Document: 28 Page: 7 Filed: 01/18/2022
AUBART v. MSPB 7
The Army moved to dismiss the appeal for lack of juris-
diction, which an administrative judge for the Board
granted in an initial decision on October 23, 2020. First,
the administrative judge determined that Mr. Aubart had
exhausted his remedies before OSC. SAppx 10. Next, the
administrative judge surveyed the relevant statements
and concluded that Mr. Aubart failed to nonfrivolously al-
lege that he had a reasonable belief that Ms. Orejana and
Lt. Col. Siegrist violated § 1001 in their CBCA submis-
sions, which asserted that the Siegrist Memorandum noti-
fied RCC-P employees that their “official duty station” had
been changed. SAppx 13–18. Although Mr. Aubart argued
that the Siegrist Memorandum “did not constitute a
change in his official duty station,” the administrative
judge rejected the argument, stating that it “boil[ed] down
to how the relocation should be legally characterized as op-
posed to any evidence of a factual misrepresentation by the
agency.” SAppx 17. Similarly, the administrative judge
concluded that Mr. Aubart failed to nonfrivolously allege
that he had a reasonable belief that Deputy Directory Chil-
son violated § 1001 by stating in his July 2019 declaration
in district court that Lt. Col. Siegrist informed the RCC-P
employees that their “duty station was being moved . . . be-
cause the office at Fort Shafter was no longer available.”
SAppx 18–20. The administrative judge noted Mr. Au-
bart’s contention that the Fort Shafter office was still avail-
able for storing equipment, furniture, and other items
during the renovation, but determined that “[w]hile Chil-
son could have added that the reason the Fort Shafter of-
fice space was not available was due to it being renovated[,]
I do not find [that] this lack of detail makes his statement
false.” SAppx 19. Accordingly, the administrative judge
dismissed the appeal for lack of jurisdiction. SAppx 20.
Mr. Aubart initially petitioned for review by the Board,
but he withdrew that request, and, as a result, the initial
decision become the final decision of the Board on August
12, 2021. SAppx 1. Mr. Aubart timely appealed to this
Case: 21-2190 Document: 28 Page: 8 Filed: 01/18/2022
8 AUBART v. MSPB
court. 5 U.S.C. § 7703(b)(1)(B); Jones v. Dep’t of Health &
Human Servs.,
834 F.3d 1361, 1364–66 (Fed. Cir. 2016)
(permitting notice of appeal to be filed before initial deci-
sion becomes final decision of the Board). We have juris-
diction under 28 U.S.C. § 1295(a)(9).
II
We must affirm the Board’s decision unless it is “(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed, or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c). “Whether the board had jurisdiction to adjudi-
cate a case is a question of law, which we review de novo.”
Forest v. Merit Sys. Prot. Bd.,
47 F.3d 409, 410 (Fed. Cir.
1995).
The Board has jurisdiction over an IRA appeal under
the WPA if the appellant, having exhausted the possibility
of OSC administrative remedies, makes to the Board “non-
frivolous allegations” that (1) the appellant engaged in
whistleblowing activity by making a protected disclosure
under 5 U.S.C. § 2302(b)(8) (or § 2302(b)(9)(A)(i), (B), (C),
or (D), which are not at issue here) and (2) the disclosure
was a contributing factor in the agency’s decision to take or
fail to take, or the agency’s threats to take or fail to take, a
“personnel action” against the appellant. 5 U.S.C.
§ 1221(a); id. § 2302(b)(8); see Hessami v. Merit Sys. Prot.
Bd.,
979 F.3d 1362, 1367 (Fed. Cir. 2021); Cahill v. Merit
Sys. Prot. Bd.,
821 F.3d 1370, 1373 (Fed. Cir. 2016); Kahn
v. Dep’t of Justice,
528 F.3d 1336, 1341 (Fed. Cir. 2008);
Yunus v. Dep’t of Veterans Affairs,
242 F.3d 1367, 1371–72
(Fed. Cir. 2001). A protected disclosure is one that the em-
ployee “reasonably believes evidences (i) any violation of
any law, rule, or regulation, or (ii) gross mismanagement,
a gross waste of funds, an abuse of authority, or a substan-
tial and specific danger to public health or safety.” 5 U.S.C
§ 2302(b)(8). And an employee’s belief is reasonable if “a
Case: 21-2190 Document: 28 Page: 9 Filed: 01/18/2022
AUBART v. MSPB 9
disinterested observer with knowledge of the essential
facts known to and readily ascertainable by the employee
[could] reasonably conclude that the actions of the govern-
ment” come within one of the protected categories.
Lachance v. White,
174 F.3d 1378, 1380–81 (Fed. Cir.
1999); cf. Baldwin v. Dep’t of Veterans Affairs,
113 M.S.P.R.
469, 477–78 (M.S.P.B. 2010) (“Because the inquiry is
whether a disinterested observer with knowledge of the es-
sential facts known to and readily ascertainable by the em-
ployee could reasonably conclude that the actions
evidenced a violation of law, we consider concepts of crimi-
nal law from a layman’s perspective as well as in a legal
sense.” (citation omitted)).
Mr. Aubart argues on appeal that the Board’s decision
“failed to properly apply the non-frivolous standard at the
jurisdictional stage.” Informal Reply Br. 12–15; see also
Informal Opening Br. 2–3. 2 We disagree. A nonfrivolous
2 Various new arguments presented in Mr. Aubart’s
reply in this court are forfeited. Informal Reply Br. 1–12
(primarily contending that transfer was not in accordance
5 U.S.C. § 5737). Mr. Aubart did not present those argu-
ments in his opening brief to this court, Informal Opening
Br. 2–3; nor are such arguments reflected in Mr. Aubart’s
submissions to the Board now filed with us, SAppx 35–42;
SAppx 90–93. Moreover, it appears (but given our finding
of forfeiture we need not decide) that Mr. Aubart’s § 5737-
based arguments would require us to redecide factual and
legal issues—concerning the character of his change of
duty station to Schofield and his corresponding entitlement
to compensation—that the district court already decided
adversely to Mr. Aubart in the Hawaii litigation, issues he
is precluded from relitigating here. See Morgan v. Dep’t of
Energy,
424 F.3d 1271, 1274–76 (Fed. Cir. 2005); Kroeger
v. U.S. Postal Serv.,
865 F.2d 235, 239 (Fed Cir. 1988);
Case: 21-2190 Document: 28 Page: 10 Filed: 01/18/2022
10 AUBART v. MSPB
allegation “is an assertion that, if proven, could establish
the matter at issue” under the WPA requirements; it must
be plausible on its face and more than conclusory. 5 C.F.R.
§ 1201.4(s); see Hessami, 979 F.3d at 1367–69; Yunus,
242
F.3d at 1371–72. As a result, the key question here is
whether Mr. Aubart plausibly alleged (after the Hawaii
district court ruling) that a disinterested observer, privy to
all essential facts known and readily ascertainable to Mr.
Aubart, would reasonably conclude that Ms. Orejana, Lt.
Col. Siegrist, and Deputy Director Chilson “knowingly and
willfully” made “materially false, fictitious, or fraudulent
statement[s] or representation[s]” in matters “within the
jurisdiction of the executive, legislative, or judicial branch
of Government of the United States.” 18 U.S.C. § 1001(a);
see, e.g., United States v. Litvak,
808 F.3d 160, 170 (2d Cir.
2015). 3 We agree with the Board that Mr. Aubart did not
(and could not) plausibly allege that any disinterested ob-
server, even a layperson, would reasonably believe that the
named individuals violated § 1001.
First, no such reasonable belief is possible regarding
Ms. Orejana and Lt. Col. Siegrist’s statements in their
CBCA submissions that the Siegrist Memorandum notified
RCC-P employees that their “official duty station” had been
changed—even though the Siegrist Memorandum did not
itself use the term “official duty station” and did repeatedly
Mother’s Rest., Inc. v. Mama’s Pizza, Inc.,
723 F.2d 1566,
1569–73 & n.4 (Fed. Cir. 1983).
3 We, like the Board, focus on 18 U.S.C. § 1001 be-
cause that is the statute Mr. Aubart himself identified in
his IRA appeal. SAppx 35. And we do not find that Mr.
Aubart’s statements and the circumstances surrounding
them clearly implicate another identifiable violation of law,
rule, or regulation. Langer v. Dep’t of the Treasury,
265
F.3d 1259, 1266 (Fed. Cir. 2001); see also Griesbach v. Dep’t
of Veterans Affairs, 705 F. App’x 962, 965 (Fed. Cir. 2017).
Case: 21-2190 Document: 28 Page: 11 Filed: 01/18/2022
AUBART v. MSPB 11
use the word “temporary.” Compare SAppx 43 (Siegrist
Memorandum), with SAppx 94–99 (CBCA submissions).
The district court in Mr. Aubart’s Hawaii litigation ex-
plained why the Siegrist Memorandum, properly read,
treated Mr. Aubart’s permanent duty station as changed,
given the technical definitions set forth in the applicable
law and regulations. Aubart,
2019 WL 3892408, at *5–6.
As a result, no disinterested observer, aware of the district
court litigation as Mr. Aubart certainly was (when he made
the asserted whistleblowing disclosures), could reasonably
believe that Ms. Orejana and Lt. Col. Siegrist’s statements
making essentially the same legal arguments that the dis-
trict court ratified had knowingly and willfully made ma-
terially false statements in violation of § 1001(a). See id.
(using “official duty station” and “permanent duty station”
interchangeably); Informal Reply Br. 3 (Mr. Aubart recog-
nizing that “permanent duty station” is synonymous with
“official station”); SAppx 91 (same). 4
Second, no disinterested observer could reasonably be-
lieve that Deputy Directory Chilson violated § 1001 by stat-
ing in his July 2019 declaration in district court that Lt.
Col. Siegrist informed the RCC-P employees that their
“duty station was being moved . . . because the office at
Fort Shafter was no longer available.” SAppx 55–56. For
the same reasons described above, there is no possible
4 The same conclusion applies to Mr. Aubart’s com-
parable assertion about the U.S. Attorney’s office’s argu-
ments to the Hawaii district court about the legal character
of the change. See SAppx 18 n.4. Given our conclusions,
we need not reach the question of the applicability here of
18 U.S.C. § 1001(b), which provides: “Subsection (a) does
not apply to a party to a judicial proceeding, or that party’s
counsel, for statements, representations, writings or docu-
ments submitted by such party or counsel to a judge or
magistrate in that proceeding.”
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12 AUBART v. MSPB
plausible allegation that anyone could view the first half of
Deputy Directory Chilson’s statement (i.e., that the duty
station was moved) as materially false. Further, there is
no possible plausible allegation that anyone could view the
second half of the statement (i.e., that Fort Shafter was no
longer available) as materially false simply because Dep-
uty Directory Chilson did not additionally spell out the pre-
cise way (not available for regular work, but available for
storage, etc.) or reason (for renovation) that Fort Shafter
was no longer available.
As Mr. Aubart has made no other allegations of viola-
tions of law, rule, or regulation, or of gross mismanage-
ment, gross waste of funds, abuse of authority, or
substantial and specific danger to public health or safety,
we agree that the Board lacked jurisdiction under 5 U.S.C.
§ 1221 and was obligated to dismiss Mr. Aubart’s petition.
III
For the foregoing reasons, we affirm the Board’s dis-
missal of Mr. Aubart’s action for lack of jurisdiction.
The parties shall bear their own costs.
AFFIRMED
