Darin A. Jones v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DARIN A. JONES,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2025-1318
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-20-0630-W-1.
______________________
Decided: April 8, 2026
______________________
DARIN A. JONES, Potomac, MD, pro se.
DEANNA SCHABACKER, Office of the General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by KATHERINE
MICHELLE SMITH.
______________________
Before LOURIE, DYK, and TARANTO, Circuit Judges.
PER CURIAM.
Case: 25-1318 Document: 38 Page: 1 Filed: 04/08/2026

-- 1 of 12 --

JONES v. MSPB 2
Darin A. Jones applied for a position with the Depart-
ment of the Navy, and the Navy tentatively selected him.
But the Navy rescinded the tentative job offer upon receiv-
ing from Mr. Jones a copy of his most recent Standard
Form 50 (SF-50), which indicated that, years earlier, he
had been terminated from a probationary role at the Fed-
eral Bureau of Investigation (FBI). Mr. Jones filed a com-
plaint with the Office of Special Counsel (OSC), alleging
that the rescission was in retaliation for protected whistle-
blowing disclosures and activity in violation of 5 U.S.C.
§ 2302(b)(8)–(9). In particular, Mr. Jones’s alleged pro-
tected disclosures and activities included (1) the submis-
sion of his SF-50 to the Navy, (2) an email he sent to the
Navy’s relevant human resources (HR) official, and (3) his
litigation of his termination from the FBI and whistleblow-
ing asserted in that litigation.
After OSC closed its investigation, Mr. Jones filed an
individual right of action (IRA) appeal with the Merit Sys-
tems Protection Board (Board). A Board-assigned admin-
istrative judge (AJ) dismissed Mr. Jones’s appeal for lack
of jurisdiction, and the full Board affirmed the AJ’s decision
but with modifications to the AJ’s rationale. See Jones v.
Department of the Navy, No. DC-1221-20-0630-W-1, 2024
WL 4589513 (M.S.P.B. Oct. 25, 2024) (Board Decision).
Mr. Jones appeals, proceeding pro se (though he is a law-
yer), as he did before the Board. We affirm.
I
Mr. Jones worked for the FBI until he was terminated
in 2012, while he was still in his probationary period. See
S. Appx. 50, 82. 1 In 2019, after applying for the position of
Supervisory Contract Specialist with the Navy and com-
pleting two rounds of interviews, Mr. Jones was informed
1 “S. Appx.” refers to the supplemental appendix
submitted with the Board’s brief.
Case: 25-1318 Document: 38 Page: 2 Filed: 04/08/2026

-- 2 of 12 --

JONES v. MSPB 3
by a Navy HR official that he had been tentatively selected
for the position. S. Appx. 50, 67. Afterward, in November
2019, Mr. Jones sent that official a copy of his SF-50 form,
which reported his previous termination from the FBI. S.
Appx. 50, 65, 82. In January 2020, two months after Mr.
Jones sent his SF-50, the Navy rescinded its tentative of-
fer. S. Appx. 85.
In May 2020, Mr. Jones filed a complaint of whistle-
blower reprisal with OSC, alleging retaliation for several
protected disclosures and activities, including his submis-
sion of his SF-50 to the Navy HR official. See S. Appx. 88;
Jones Opening Br. at 6–10. OSC terminated its investiga-
tion without action, and Mr. Jones appealed to the Board.
S. Appx. 88–89, 77–81.
In June 2020, the Board’s AJ ordered Mr. Jones to es-
tablish that the Board had jurisdiction over his appeal. S.
Appx. 69. Specifically, the AJ ordered Mr. Jones to provide
evidence that he had exhausted his administrative reme-
dies and that his allegations regarding his protected disclo-
sures and activities were nonfrivolous. S. Appx. 69–76. In
his response to the order, Mr. Jones alleged that he made
protected disclosures and engaged in protected activities
when he (1) emailed the Navy in January 2020 to complain
that it had departed from “acceptable and proper HR pro-
cedure” by not timely communicating with him after the
tentative job offer was made; (2) sent the HR official his SF-
50, which disclosed his FBI termination from seven years
earlier even though (he alleged) disclosure of a termination
more than five years earlier was not required; and (3) chal-
lenged his termination from the FBI by arguing, over sev-
eral years of litigation, that he faced reprisal for disclosing
the FBI’s procurement violations. S. Appx. 50–61. Mr.
Jones further alleged that the Navy perceived him as a
whistleblower and retaliated against him by rescinding the
job offer due to that perception. S. Appx. 58–60.
Case: 25-1318 Document: 38 Page: 3 Filed: 04/08/2026

-- 3 of 12 --

JONES v. MSPB 4
Without deciding the jurisdictional question, the AJ al-
lowed Mr. Jones to conduct discovery and to file an
amended jurisdictional response when discovery closed. S.
Appx. 45–47. In September 2020, Mr. Jones submitted an
amended jurisdictional response, not disputing who was
the Navy official who made the withdrawal decision (the
deciding official) and arguing that evidence of communica-
tions among that official, the Navy’s HR official, and a
Navy attorney regarding the job-offer rescission satisfied
his jurisdictional burden. See S. Appx. 38–42.
In December 2020, the AJ dismissed Mr. Jones’s appeal
for lack of jurisdiction. S. Appx. 15. The AJ concluded that
Mr. Jones failed to meet the nonfrivolous-allegation stand-
ard for any of the following assertions: (1) that either his
January 2020 email to the Navy complaining about the
lack of communication after receiving a tentative offer or
his November 2019 SF-50 submission was a protected dis-
closure, see S. Appx. 21–28; (2) that either of those alleged
disclosures contributed to the rescission of his offer, see id.;
(3) that he administratively exhausted his claim that sub-
mitting his SF-50 to the Navy constituted a protected dis-
closure, see S. Appx. 28; or (4) that his activities
challenging his FBI termination (including disclosures re-
vealed in those activities) contributed to the Navy’s rescis-
sion of its job offer to him, see S. Appx. 24–27. Mr. Jones
sought review by the Board. See Board Decision, at *1.
On October 25, 2024, the Board affirmed the AJ’s dis-
missal for lack of jurisdiction, with some modifications to
the AJ’s analysis. See Board Decision. The Board agreed
with the AJ that Mr. Jones failed to nonfrivolously allege
that either his November 2019 submission of his SF-50 or
his January 2020 email to the HR official was a protected
disclosure under 5 U.S.C. § 2302(b)(8), but it vacated the
AJ’s finding regarding exhaustion of administrative reme-
dies and the finding that those disclosures contributed to
the rescission of the offer. Id., at *2–5.
Case: 25-1318 Document: 38 Page: 4 Filed: 04/08/2026

-- 4 of 12 --

JONES v. MSPB 5
The Board then addressed Mr. Jones’s activities involv-
ing his challenges to his FBI termination, including (1) a
disclosure to an Inspector General of asserted procurement
problems at the FBI, and (2) litigation initiated and
pressed by Mr. Jones alleging whistleblower reprisal for
that disclosure. Id., at *3 n.3. The Board indicated that
Mr. Jones’s assertion that he disclosed procurement viola-
tions to the Inspector General constituted a nonfrivolous
allegation of protected activity under 5 U.S.C.
§ 2302(b)(9)(C), and, “[t]o the extent his prior [FBI-
termination-related] litigation sought to remedy whistle-
blower reprisal, it too would constitute protected activity.”
Id. At the next step of the required whistleblowing analy-
sis, concerning whether those two protected activities were
contributing factors in the Navy’s job-offer withdrawal, the
Board agreed with the AJ that Mr. Jones failed to make
nonfrivolous allegations for that element, at bottom be-
cause the key allegations of the deciding official’s actual or
constructive knowledge of such activities were too specula-
tive. Id., at *3–5.2 Finally, for essentially the same reason,
the Board affirmed the AJ’s conclusion that Mr. Jones
failed to nonfrivolously allege that the Navy perceived him
as a whistleblower. Id., at *5. For those reasons, the Board
denied Mr. Jones’s petition for review. See id., at *1, *5–6.
Mr. Jones appealed, and we have jurisdiction under 28
U.S.C. § 1295(a)(9).
2 The Board noted that the AJ, as to actual
knowledge, had mistakenly relied in part on materials not
appropriate for consideration at the threshold jurisdic-
tional stage and, as to constructive knowledge, had not ad-
dressed the key question. Id., at *4–5. The Board did not
consider the evidence on which the AJ had mistakenly re-
lied regarding actual knowledge, and the Board itself ad-
dressed the key constructive-knowledge issue that the AJ
had not addressed.
Case: 25-1318 Document: 38 Page: 5 Filed: 04/08/2026

-- 5 of 12 --

JONES v. MSPB 6
II
A
We may set aside the Board’s decision only if it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c). We review without deference the Board’s
jurisdiction to adjudicate an appeal. Johnston v. Merit Sys-
tems Protection Board, 518 F.3d 905, 909 (Fed. Cir. 2008).
If Board factual findings are at issue, we review them for
substantial-evidence support, see McGuffin v. Social Secu-
rity Administration, 942 F.3d 1099, 1107 (Fed. Cir. 2019),
which is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion,” Consol-
idated Edison Co. v. National Labor Relations Board, 305
U.S. 197, 229 (1938).
For the Board to have jurisdiction over an IRA appeal
relating to a claim of whistleblowing reprisal, the peti-
tioner must first exhaust his administrative remedies be-
fore OSC. See Cahill v. Merit Systems Protection Board,
821 F.3d 1370, 1373 (Fed. Cir. 2016); 5 U.S.C. § 1221(e)(1).
The petitioner must also nonfrivolously allege to the Board
that (1) he made a protected disclosure under 5 U.S.C.
§ 2302(b)(8) or engaged in a protected activity under 5
U.S.C. § 2302(b)(9), and (2) his protected disclosure or ac-
tivity contributed to the Navy’s decision to take a personnel
action under 5 U.S.C. § 2302(a). See Cahill, 821 F.3d at
1373; Hessami v. Merit Systems Protection Board, 979 F.3d
1362, 1367–70 (Fed. Cir. 2020).
As relevant to Mr. Jones’s challenges to the Board’s de-
cision regarding his alleged protected activities and disclo-
sures, “[a] nonfrivolous allegation is an assertion that, if
proven, could establish the matter at issue” and 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.
Case: 25-1318 Document: 38 Page: 6 Filed: 04/08/2026

-- 6 of 12 --

JONES v. MSPB 7
§ 1201.4(s); see Hessami, 979 F.3d at 1369 & n.5 (analogiz-
ing 5 C.F.R. § 1201.4(s)’s requirements to the standard gov-
erning complaints in district court and stating that the
determination whether there is “a plausible claim for relief
will . . . be a context-specific task that requires the review-
ing court to draw on its judicial experience and common
sense” (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009))). Moreover, a nonfrivolous allegation of a protected
disclosure under 5 U.S.C. § 2302(b)(8) requires at least al-
legations of fact that, if true, could demonstrate that the
petitioner reasonably believed that his disclosure evi-
denced “any violation of any law, rule, or regulation, or . . .
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(b)(8)(A); see Cahill, 821
F.3d at 1373; Hessami, 979 F.3d at 1370. “Whether a[] [pe-
titioner] has such a reasonable belief is determined by an
objective test: whether a disinterested observer with
knowledge of the essential facts known to and readily as-
certainable by the [petitioner] would reasonably conclude
that the actions of the government evidence wrongdoing as
defined by the Whistleblower Protection Act.” Young v.
Merit Systems Protection Board, 961 F.3d 1323, 1328 (Fed.
Cir. 2020) (citing Giove v. Department of Transportation,
230 F.3d 1333, 1338 (Fed. Cir. 2000)).
For the “contributing factor” portion of the whistle-
blower claim analysis, a petitioner can establish that a rel-
evant official possessed knowledge of the petitioner’s
whistleblowing activity by invoking the “knowledge/tim-
ing” test. See Kewley v. Department of Health and Human
Services, 153 F.3d 1357, 1362 (Fed. Cir. 1998) (explaining
that, under 5 U.S.C. § 1221(e)(1), “circumstantial evidence
of knowledge of the protected disclosure and a reasonable
relationship between the time of the protected disclosure
and the time of the personnel action will establish, prima
facie, that the disclosure was a contributing factor to the
personnel action” (internal citation omitted)).
Case: 25-1318 Document: 38 Page: 7 Filed: 04/08/2026

-- 7 of 12 --

JONES v. MSPB 8
B
We conclude that the Board correctly determined that
Mr. Jones failed to make nonfrivolous allegations of the
protected-disclosure character of either his submission of
the SF-50 or his January 2020 email to HR. As to the
Board’s ruling that he failed to nonfrivolously allege that
his FBI-termination-related activities (i.e., his litigation of
his termination and the whistleblowing charge made in
that litigation) were a contributing factor in the Navy’s de-
cision to rescind the offer, we conclude that Mr. Jones (a
lawyer) has forfeited a challenge to that ruling by making
no coherent, developed argument against the Board’s ap-
plication of the jurisdictional standard to the
knowledge/timing analysis. We find no merit in any of Mr.
Jones’s discernible challenges to the Board’s decision. We
therefore affirm.
1
Mr. Jones contests the Board’s conclusion that he did
not nonfrivolously allege the protected-disclosure charac-
ter of either his January 2020 email or his November 2019
submission of his SF-50. See Jones Opening Br. at 12–14.
His argument is discernible and straightforward. He ar-
gues that the Board failed to ask “whether a disinterested
observer with knowledge of the essential facts known to
and readily ascertainable by the [petitioner] could reason-
ably conclude that the disclosure evidenced one of the cir-
cumstances described in 5 U.S.C. § 2302(b)(8),” Bradley v.
Department of Homeland Security, 123 M.S.P.R. 547, 552
(2016). See Jones Opening Br. at 13. We reject this argu-
ment.
The Board explicitly invoked the “disinterested ob-
server” test in coming to its conclusion that Mr. Jones’s
“vague” email allegations that the Navy violated “accepta-
ble and proper HR procedure” did not “disclos[e] HR impro-
prieties” and therefore did not constitute allegations of a
protected disclosure under the relevant portion of 5 U.S.C.
Case: 25-1318 Document: 38 Page: 8 Filed: 04/08/2026

-- 8 of 12 --

JONES v. MSPB 9
§ 2302(b)(8). Board Decision, at *2. The Board again in-
voked the “disinterested observer” test in its analysis of the
SF-50 disclosure at issue and concluded that, notwith-
standing Mr. Jones’s “apparent belief that the [Navy] im-
properly required h[i]m to submit” the SF-50, his belief
that submission was required did not make his submission
of the form a protected disclosure under 5 U.S.C.
§ 2302(b)(8). Id., at *3. The Board properly applied the
correct standard for determining whether Mr. Jones’s alle-
gations of disclosures were nonfrivolous and correctly con-
cluded that he alleged no reasonable belief of any violation
of a law, rule, or regulation. See id., at *2–3. We therefore
affirm the Board’s conclusion that Mr. Jones’s 2020 email
and 2019 submission of his SF-50 were not adequately al-
leged to be protected disclosures. The dismissal of those
grounds for the IRA appeal is affirmed.
2
Mr. Jones expresses disagreement with the Board’s
dismissal of his claim of whistleblowing reprisal for his ac-
tivities challenging his FBI termination (i.e., his litigation
of his termination and the whistleblowing charge made in
that litigation). See Jones Opening Br. at 5, 13–15, 26. On
this issue, however, unlike the protected-character issue
just discussed, we find Mr. Jones’s presentation to us in-
sufficient to preserve a challenge. He does not even discuss
the knowledge/timing test applied by the Board. And, what
is enough given the nature of this issue, he neither pin-
points nor presents a coherent, developed argument ex-
plaining how the Board erred in concluding that his key
assertions were too speculative to pass muster under the
jurisdictional requirements of being plausible and not con-
clusory. For that reason, we conclude that Mr. Jones has
forfeited any challenge to this ruling of the Board.
3
Mr. Jones challenges the Board’s conclusion that he
failed to nonfrivolously allege that the Navy retaliated
Case: 25-1318 Document: 38 Page: 9 Filed: 04/08/2026

-- 9 of 12 --

JONES v. MSPB 10
against him as a perceived whistleblower. See Jones Open-
ing Br. at 13–15. He argues that the AJ should have certi-
fied an interlocutory review to determine whether the
Board can assert jurisdiction over a claim involving per-
ceived protected activity under 5 U.S.C. § 2302(b)(9)(A).
See Jones Opening Br. at 13–14. We reject this contention.
The Board correctly ruled that Mr. Jones forfeited the op-
portunity for interlocutory review by failing to seek the cer-
tification of an interlocutory appeal before the AJ. See
Board Decision, at *5 (citing 5 C.F.R. § 1201.93(a) and
Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
(1980)). We see no abuse of discretion by the AJ in not in-
dependently certifying the perceived-whistleblower issue
for interlocutory review by the Board pursuant to 5 C.F.R.
§ 1201.91. See Herman v. Department of Justice, 119
M.S.P.R. 642, 647–48 & n.3 (2013).
In any event, this issue is mooted by the Board’s issu-
ance of a final decision addressing Mr. Jones’s arguments
on their merits—a decision we find no warrant for disturb-
ing. See id. at 648 n.3. In particular, we do not disturb the
Board’s dismissal of Mr. Jones’s contention regarding the
FBI-termination-related activities for want of adequate al-
legations of the deciding official’s actual or constructive
knowledge, and Mr. Jones’s argument that he was per-
ceived by the Navy as a whistleblower is largely based on
that contention. See Jones Opening Br. at 6, 13; Board In-
formal Response Br. at 23–24.
4
Mr. Jones makes other discrete assertions of Board er-
ror, none of which is persuasive.
First, Mr. Jones contends that the Board “failed to ad-
judicate that (1) the vacancy announcement did not require
or even request [ ] any [termination-related SF-50] disclo-
sure, and (2) Jones was not asked during either of his two
interviews why he left the FBI.” Jones Opening Br. at 12.
He adds that he was not required to disclose his FBI
Case: 25-1318 Document: 38 Page: 10 Filed: 04/08/2026

-- 10 of 12 --

JONES v. MSPB 11
termination under any Office of Personnel Management
policy. Id. But these assertions do not identify any Board
error separate from the Board’s rulings on the asserted pro-
tected disclosures. The Board had no obligation to consider
these factual issues before answering the threshold juris-
dictional question. See Cahill, 821 F.3d at 1373–75. And,
as discussed, see supra p.9, Mr. Jones’s belief that he was
not required to submit his FBI SF-50 to the Navy does not
demonstrate that his allegations of a protected disclosure
were nonfrivolous. See Board Decision, at *3.
Additionally, Mr. Jones asserts that the Board failed to
“properly account for all of [his] whistleblower and per-
ceived whistleblower claims.” Jones Opening Br. at 11
(capitalization altered). This assertion is not sufficiently
specific or substantiated to add anything to the matters we
have discussed above.
Mr. Jones further argues that the AJ “erred in ‘weigh-
ing evidence’, ‘resolv(ing) conflicting assertions’, and find-
ing ‘the [Navy’s] evidence’ ‘dispositive.’” Id. at 13. But it is
the Board’s decision that is before us, and the Board did
not weigh evidence, or rely on any AJ weighing of evidence,
in making its jurisdictional decision. It merely determined
whether the allegations were “more than conclusory” and
“plausible.” 5 C.F.R. § 1201.4(s); e.g., Board Decision, at
*2 & n.2.
Mr. Jones argues that the AJ showed a “deep-seated
favoritism for the [Navy],” resulting in “multiple errors of
fact and law.” Jones Opening Br. at 15–18. His only evi-
dence in support of this contention is the fact, noted by the
AJ herself, that part of the initial decision was copied from
the Navy’s narrative response. See Jones Opening Br. at
16; S. Appx. 16 n.3. As the Board held, however, see Board
Decision, at *5, this is not enough to show “a deep-seated
favoritism or antagonism that would make fair judgment
impossible.” Bieber v. Department of Army, 287 F.3d 1358,
Case: 25-1318 Document: 38 Page: 11 Filed: 04/08/2026

-- 11 of 12 --

JONES v. MSPB 12
1362 (Fed. Cir. 2002) (quoting Liteky v. United States, 510
U.S. 540, 555 (1994)).
III
Mr. Jones’s remaining arguments are unpersuasive or
immaterial to the outcome. We therefore affirm the
Board’s final decision.
The parties shall bear their own costs.
AFFIRMED
Case: 25-1318 Document: 38 Page: 12 Filed: 04/08/2026

-- 12 of 12 --