Case: 21-1497 Document: 47 Page: 1 Filed: 10/08/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PAUL G. MIRANNE,
Petitioner
v.
DEPARTMENT OF THE NAVY,
Respondent
______________________
2021-1497
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-19-0669-I-3.
______________________
Decided: October 8, 2021
______________________
PAUL G. MIRANNE, Pensacola, FL, pro se.
DANIEL HOFFMAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BRIAN M.
BOYNTON, STEVEN JOHN GILLINGHAM, MARTIN F. HOCKEY,
JR.
______________________
Before PROST, TARANTO, and HUGHES, Circuit Judges.
PER CURIAM.
Case: 21-1497 Document: 47 Page: 2 Filed: 10/08/2021
2 MIRANNE v. NAVY
Paul G. Miranne was an employee of the Department
of the Navy. After Mr. Miranne sent a strongly worded,
accusatory email to coworkers and supervisors suggesting
that they were complicit in a conspiracy, the Navy fired
him. He unsuccessfully appealed his termination to the
Merit Systems Protection Board, which found the grounds
for removal established and the removal penalty justified,
and which rejected Mr. Miranne’s affirmative defense of
whistleblower retaliation. Mr. Miranne now appeals. We
affirm the Board’s decision.
I
Beginning in 1999, the Navy employed Mr. Miranne as
a Personnel Psychologist at the Navy Advancement Center
in Pensacola, Florida. In that position, Mr. Miranne had
access to the Navy Marine Corps Intranet. His position
was initially designated “non-sensitive,” meaning that it
was “a position of trust and ha[d] no effect on national se-
curity.” SAppx. 51, Appx. 42.
On September 27, 2017, however, the Commanding Of-
ficer of the Navy Education and Training Professional De-
velopment and Technology Center (NETPDC), Captain
Brooks, announced a change that would affect Mr. Mi-
ranne. Captain Brooks sent out, to a large internal audi-
ence, an email stating that personnel with access to the
Navy Marine Corps Intranet would require a designation
of at least “non-critical sensitive” to comply with Depart-
ment of Defense and Navy policy. Appx. 92, 295. Such a
designation means that a person fulfilling the duties of the
position “could potentially cause damage to national secu-
rity.” SAppx. 51. Captain Brooks explained:
In the last year, we have done a thorough review of
all our positions in accordance with NETPDCINST
12510.2B. The review revealed we have multiple
positions across the command that have an as-
signed position sensitivity of “non-sensitive” vice
“non-critical sensitive.” . . . .
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MIRANNE v. NAVY 3
I have directed [Navy employee] N1 to proceed in
updating the Position Descriptions (PDs) for those
listed as “non-sensitive.” I have also directed our
Security Manager (N44) to simultaneously initiate
Tier-3 background investigations as required.
Appx. 92.
After receiving Captain Brooks’s email, Mr. Miranne
contacted the Command Security Manager. Mr. Miranne
expressed skepticism that anything he would do in his po-
sition could affect national security, and he asked, “Am I
missing something?” Appx. 124. The Command Security
Manager replied, “Yes, you are missing something,” and ex-
plained why. Appx. 123.
The following month, in October 2017, Mr. Miranne
again contacted the Command Security Manager for fur-
ther clarification of his position’s security clearance. He
was told that supervisors were continuing to update posi-
tion descriptions, but that his specific position description
“requires a secret security clearance.” Appx. 176. Over the
following 19 months, Mr. Miranne inquired of various se-
curity staff and supervisors about the change in security
clearance for his position.
By May 2019, Mr. Miranne viewed the policy change as
a violation of the regulations governing national-security
designations of positions and its adoption as a result of
criminal or otherwise improper acts by many of his cowork-
ers and supervisors. On May 9, 2019, Mr. Miranne emailed
approximately 20 individuals, including his entire chain of
command, to express disagreement with the Navy’s policy
change. One passage in the email states:
ON ITS FACE, it should be obvious to all individu-
als receiving this email that our access to [the Navy
Marine Corps Intranet] is not the reason for this
action. I have surveyed countless coworkers and
other individuals–military and civilian alike–who
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4 MIRANNE v. NAVY
are all in agreement that our access to [the Intra-
net] poses no threat to national security. So why
does NETPDC management continue with this
charade? That’s easy: it was necessary to imple-
ment the scheme developed by Cdr. Johnson and
Mr. Hannan (and most of you all – wittingly or un-
wittingly) to essentially provide greater flexibility
between the classified and unclassified branches of
the Exam Development division. This, ladies and
gentlemen, is commonly known as fraud: the expla-
nation provided for the personnel action at issue
was not the real reason for the personnel action. In
legal parlance, it is considered a materially false,
fictitious, or fraudulent statement or representa-
tion (I call it the Lanaro Law). When more than
one individual is involved, it becomes a conspiracy
to commit fraud.
Appx. 2.
As a result of the email, the Navy charged Mr. Miranne
with disrespectful and improper conduct and eventually re-
moved him from federal service based on that charge. Mr.
Miranne appealed his removal to the Board under 5 U.S.C.
chapters 75 and 77. In the appeal, he stated as an affirm-
ative defense to the removal that he was removed in retal-
iation for whistleblowing—the May 9 email constituting
the allegedly protected disclosure—in violation of the
Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8).
The administrative judge assigned by the Board, after
a hearing, sustained the charge of disrespectful and im-
proper conduct, affirmed the Navy’s decision to remove Mr.
Miranne as a proper penalty for the conduct, and rejected
the whistleblower defense. Appx. 10. (We refer to the de-
cision as that of the Board because the decision became the
decision of the Board when Mr. Miranne did not seek full
Board review within the prescribed time.) The Board de-
scribed the May 2019 email as being “as delicate and
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MIRANNE v. NAVY 5
nuanced as a cannon blast” with “an air of moral superior-
ity, abrasiveness, condescension, and profound disrespect
which simply cannot be minimized or misinterpreted.”
SAppx. 14. The Board found that Mr. Miranne “showed
dreadfully poor judgment” and that, given the nature of his
position, termination was reasonable. SAppx. 15. And the
Board concluded that Mr. Miranne was not protected under
the Whistleblower Protection Act because it could not sec-
ond-guess the relevant Navy decisions on security designa-
tions and, in addition, Mr. Miranne’s belief about the
activity he attacked, though genuinely held, was objec-
tively unreasonable. SAppx. 18, 22.
The Board’s decision became final on November 2,
2020. SAppx. 23. This court received Mr. Miranne’s notice
of appeal on January 2, 2021, ECF # 1, within the permit-
ted 60 days, 5 U.S.C. § 7703(b)(1)(A). We have jurisdiction
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). “Underlying factual determinations are re-
viewed for substantial evidence.” McMillan v. Dep’t of Jus-
tice,
812 F.3d 1364, 1371 (Fed. Cir. 2016). Mr. Miranne
bears the burden of establishing error that justifies setting
aside the Board’s decision. Fernandez v. Dep’t of the Army,
234 F.3d 553, 555 (Fed. Cir. 2000).
A
We first address Mr. Miranne’s challenge to the
Board’s rejection of his whistleblowing defense. To prove
retaliation for whistleblowing as an affirmative defense,
Mr. Miranne must show by a preponderance of the evi-
dence that he made a protected disclosure under 5 U.S.C.
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6 MIRANNE v. NAVY
§ 2302(b)(8) or (9) that was a contributing factor to his ter-
mination. Cahill v. MSPB,
821 F.3d 1370, 1373 (Fed. Cir.
2016). Key here is the requirement that, for the asserted
retaliation to exist, Mr. Miranne had to “reasonably” be-
lieve that the information he disclosed “evidences” a “viola-
tion of any law, rule, or regulation” or certain other
wrongdoing. 5 U.S.C. § 2302(b)(8)(A).
We conclude that the Board’s factual findings are sup-
ported by substantial evidence and, under the proper legal
standard, support the determination that Mr. Miranne’s
beliefs about the information at issue were not reasonable.
See Giove v. Dep’t of Transportation,
230 F.3d 1333, 1338–
39 (Fed. Cir. 2000) (applying substantial-evidence review
to factual findings on reasonable-belief issue). This conclu-
sion requires affirmance of the Board’s rejection of the de-
fense even apart from the Board’s reliance on the limits on
Board authorization to second-guess agency choices about
what security designations are needed for particular posi-
tions.
First, Mr. Miranne points to the timing of his back-
ground investigation in suggesting that a belief in illegality
of the Navy’s redesignation of his position was reasonable.
He cites a regulation stating that an agency “must” initiate
a background investigation “no later than 14 working days
after the change in designation[,]” 5 C.F.R. § 1400.204(b)(1)
(emphasis added), and points to the fact that the Navy ini-
tiated his background investigation before his position was
changed. See Pet. Br. 9. But assuming an adequate con-
nection of this assertion to the May 9 disclosure, it is not
reasonable to interpret this regulation as doing more than
stating the latest possible time for an agency to initiate an
investigation. Given the self-evident purpose to prevent
service in a position having a particular designation for no
more than two weeks without a background investigation
getting started, it is not reasonable to read the regulation
to prohibition initiation of the investigation even before the
position changes its designation. Indeed, the regulations
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MIRANNE v. NAVY 7
contemplate just such an anticipatory investigation,
providing that the agency “may provide advance notice of
the redesignation of a position to allow time for completion
of the forms, releases and other information needed from
the incumbent to initiate the investigation.” 5 C.F.R. §
1400.204(c).
There is substantial evidence that the Navy adopted its
security changes in compliance with the cited regulations,
not as a pretext for manipulating personnel. One security
officer, Mr. Sganga testified that the policy change dates
back to a 1995 executive order that “progressively gained
momentum” as “more people [gained] access to more infor-
mation[.]” SAppx. 55–56. The Navy implemented the ex-
ecutive order, he said, based on “an [Office of Personnel
Management] memo and [Department of Defense] guid-
ance[.]” SAppx. 56. He pointed to various supporting doc-
uments, including the Navy’s and Defense’s Security
Manuals, as being significant to the policy change. SAppx.
59, 62. The Board found Mr. Sganga to be “a subject matter
expert” who “credibly and consistently testified with sup-
porting evidence that this planned change was not only per-
mitted but was required[.]” Appx. 30. In contrast, Mr.
Miranne called no witnesses to support his theory. The
Board reasonably found Mr. Sganga to be more credible
than Mr. Miranne. 1
Having considered Mr. Miranne’s various arguments
for the reasonableness of his belief that the Navy conduct
came within the statutory illegality/wrongdoing standard,
we see no reversible error in the Board determination that
1 Mr. Miranne has requested that we take the ex-
traordinary step of supplementing the record on which we
are to adjudicate his petition for review by adding several
emails that were not in the agency record. ECF # 14, # 18.
We deny the request, concluding that Mr. Miranne has not
met the demanding standards for such action.
Case: 21-1497 Document: 47 Page: 8 Filed: 10/08/2021
8 MIRANNE v. NAVY
his belief was not reasonable. Accordingly, his challenge to
the Board’s rejection of his whistleblowing defense fails.
B
Mr. Miranne challenges the Board’s finding that the
Navy proved its charge of unprofessional conduct and rea-
sonably chose removal as a penalty. We reject this chal-
lenge.
The Board had substantial evidence to support its find-
ing on the underlying conduct. There was the May 9 email
itself (“about as delicate and nuanced as a cannon blast,”
SAppx. 14), and a supervisor’s reaction to the email (“the
most disrespectful and unprofessional email I have seen or
received in my 35 years of federal service,” SAppx. 16). The
Board could reasonably find the charge supported despite
Mr. Miranne’s steadfast view that the tone was “justified.”
SAppx. 13.
As to the penalty, the Board found the testimony of the
deciding official, Mr. Jackson, regarding his analysis of
both mitigating and aggravating factors to be “detailed and
consistent,” and the Board also found that Mr. Jackson’s
“demeanor was thoughtful” and “calm” and that Mr. Jack-
son was “forthright about his reasons for removing the ap-
pellant.” SAppx. 18. This court cannot overturn an
agency’s choice of “penalty unless it is unauthorized or ex-
ceeds the bounds of reasonableness because it is so harsh
and unconscionably disproportionate to the offense that it
amounts to an abuse of discretion, or where the record is
devoid of any basis demonstrating reasonableness.”
Dominguez v. Dep’t of Air Force,
803 F.2d 680, 684 (Fed.
Cir. 1986). Here, there was some evidence that Mr. Mi-
ranne’s email fits into a larger pattern of similar conduct
over the years, despite prior warnings and lesser discipline,
some of which Mr. Miranne disputes. But it is evident that
the determinative factor in the removal decision was the
assessment that the May 9 email was exceptionally offen-
sive and manifested “dreadfully poor judgment,” which “no
Case: 21-1497 Document: 47 Page: 9 Filed: 10/08/2021
MIRANNE v. NAVY 9
doubt would have detracted from the appellant’s character
and reputation as a Personnel Psychologist in any profes-
sional office.” SAppx. 15. Despite Mr. Miranne’s effort to
show that the email does not fairly impair his ability to
succeed in his position, Pet. Br. 18–22, the Navy did not act
unreasonably in concluding otherwise or, therefore, in de-
ciding to remove Mr. Miranne from his position.
CONCLUSION
We have considered Mr. Miranne’s remaining argu-
ments and conclude that they are without merit. For the
reasons discussed above, we affirm the decision of the
Board.
The parties shall bear their own costs.
AFFIRMED
