Yomi v. MSPB

• Court: Court of Appeals for the Federal Circuit
• Decided: August 6, 2025
• Docket: 24-1622
• Status: Unpublished

Opinion

Case: 24-1622 Document: 44 Page: 1 Filed: 08/06/2025

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

FRANCIS YOMI, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________

2024-1622 ______________________

Petition for review of the Merit Systems Protection Board in No. SF-1221-17-0580-W-1. ______________________

Decided: August 6, 2025 ______________________

FRANCIS YOMI, Santa Fe, NM, pro se.

STEPHEN FUNG, Office of the General Counsel, United States Merit Systems Protection Board, Washington, DC, for respondent. Also represented by ALLISON JANE BOYLE, KATHERINE MICHELLE SMITH. ______________________

Before PROST, REYNA, and CHEN, Circuit Judges. PER CURIAM. Case: 24-1622 Document: 44 Page: 2 Filed: 08/06/2025

Francis Yomi appeals a decision of the Merit Systems Protection Board (“Board”) dismissing his appeal for lack of jurisdiction. For the following reasons, we affirm. BACKGROUND Mr. Yomi was employed as a GS-6 Physical Science Technician (“PST”) for the Department of the Navy (“Navy”) from July 7, 2014, to August 28, 2014. S.A. 2.1 Before being hired for that position, Mr. Yomi applied for a PST GS-7/8/9 position. S.A. 16. Though the Navy found he was qualified for the PST GS-7/8/9 position, he was ulti- mately not selected. S.A. 16. Mr. Yomi sought answers for his non-selection for the PST GS-7/8/9 position. First, on August 19, 2014, Mr. Yomi met in-person with his second-line supervisor, a human re- sources specialist, and an administrative officer. S.A. 16. During the meeting, the administrative officer told Mr. Yomi that “he had not been selected because he had not been selected,” and the human resources specialist told Mr. Yomi that “the selection decision was up to the discre- tion of management.” S.A. 16. In response, Mr. Yomi ex- plained his belief that selection decisions should be based on the qualifications and merits of the applicants, not man- agement discretion. S.A. 39; Resp’t’s Informal Br. 4. Sec- ond, on August 20, 2014, Mr. Yomi sent an email to his third-line supervisor informing her of the substance of the previous day’s meeting and asserting that “it should be clearly explained why an applicant has not been selected from an objective criteria point of view, rather than a man- agement discretion point of view.” S.A. 16–17. On August 28, 2014, Mr. Yomi received a Notification of Termination of Appointment from the Navy. S.A. 153–54; see S.A. 17. The notification letter stated that

1 “S.A.” refers to the supplemental appendix in- cluded with the government’s informal brief. Case: 24-1622 Document: 44 Page: 3 Filed: 08/06/2025

YOMI v. MSPB 3

he was being terminated for failing to meet academic standards because he failed three exams, which was a listed cause for termination in his contract. See S.A. 112–13. That same day, Mr. Yomi chose to resign ra- ther than being terminated. S.A. 2. In September 2016, Mr. Yomi filed a complaint with the Office of Special Counsel (“OSC”). S.A. 17. As relevant here, Mr. Yomi alleged that his forced resignation was the result of his August 19 and 20, 2014 statements—which he alleged were whistleblower protected disclosures. S.A. 38–47. In June 2017, OSC closed the case. S.A. 4, 17–18. In July 2017, Mr. Yomi filed an individual right of ac- tion (“IRA”) appeal with the Board mainly alleging that the Navy retaliated against him due to his whistleblowing ac- tivities in violation of the Whistleblower Protection En- hancement Act of 2012. S.A. 15. The administrative judge (“AJ”) concluded that Mr. Yomi “failed to non-frivolously allege Board jurisdiction.” S.A. 21. The AJ made several specific findings. First, the AJ found Mr. Yomi’s disclo- sures did not clearly implicate an identifiable law, rule, or regulation—a requirement for the disclosures being consid- ered “protected” under 5 U.S.C. § 2302(b)(8). S.A. 19 (cit- ing Langer v. Dep’t of Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001)). Mr. Yomi argued his statements impli- cated the Pendleton Civil Service Reform Act of 1883 (“Pendleton Act”) and merit system principles,2 but the AJ rejected Mr. Yomi’s arguments in addition to finding more broadly that Mr. Yomi’s disclosures did not clearly impli- cate a violation of any other law, rule, or regulation. S.A. 19–20. The AJ also found there was no abuse of au- thority, as Mr. Yomi did not show how any of his supervi- sors’ statements adversely affected anyone’s rights.

2 See 5 U.S.C. § 2301 (codifying merit system princi- ples). Case: 24-1622 Document: 44 Page: 4 Filed: 08/06/2025

S.A. 20–21. The AJ finally rejected Mr. Yomi’s claims that the statements he disclosed could constitute gross misman- agement. S.A. 21. Mr. Yomi filed a petition for review of the AJ’s initial decision with the Board. S.A. 220–28. The Board denied Mr. Yomi’s petition and affirmed the AJ’s initial decision with one modification relevant here. Specifically, the Board noted that the initial decision improperly “appeared to hold, in part, [Mr. Yomi] to a higher pleading standard than is permissible at the jurisdictional stage by finding that he failed to ‘show’—rather than nonfrivolously al- lege—that his disclosures evidenced a violation of law, rule, or regulation.” S.A. 6. The Board applied the modi- fied standard and agreed with the AJ’s initial decision that Mr. Yomi failed to non-frivolously allege his claim. See S.A. 6–7. Mr. Yomi timely petitioned this court for review. We have jurisdiction under 28 U.S.C. § 1295(a)(9). DISCUSSION We uphold the Board’s decision unless it is “(1) arbi- trary, 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). We review whether the Board lacks jurisdiction de novo. Forest v. MSPB, 47 F.3d 409, 410 (Fed. Cir. 1995). To establish Board jurisdiction over an IRA appeal, an appellant must have exhausted his or her administrative remedies before the OSC and make non-frivolous allega- tions3 that a personnel action was taken in retaliation for

3 A non-frivolous allegation is “an assertion that, if proven, could establish the matter at issue.” 5 C.F.R. Case: 24-1622 Document: 44 Page: 5 Filed: 08/06/2025

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any protected disclosure under 5 U.S.C. § 2302(b)(8) or pro- tected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). Young v. MSPB, 961 F.3d 1323, 1328 (Fed. Cir. 2020). Mr. Yomi’s disclosures are protected if he reasonably be- lieves they evidence (1) “any violation of any law, rule, or regulation,” or (2) “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). The test for whether Mr. Yomi reasonably believed the disclosures met the criteria is an objective one. See Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999) (“A purely subjective perspective of an employee is not suffi- cient . . . .”). This court asks “whether a disinterested ob- server with knowledge of the essential facts known to and readily ascertainable by the employee would reasonably conclude that the actions of the government evidence wrongdoing as defined by the Whistleblower Protection Act.” Young, 961 F.3d at 1328. “[F]or a lawful agency policy to constitute ‘gross mis- management,’ an employee must disclose such serious er- rors by the agency that a conclusion [that] the agency erred is not debatable among reasonable people. The matter must also be significant.” White v. Dep’t of Air Force, 391 F.3d 1377, 1382 (Fed. Cir. 2004). The Board considers an abuse of authority to include “an arbitrary or capricious exercise of power by a federal official or employee that ad- versely affects the rights of any person or that results in personal gain or advantage to himself or to preferred other persons.” Smolinski v. MSPB, 23 F.4th 1345, 1351 (Fed. Cir. 2022) (quoting Wheeler v. Dep’t of Veterans Affs., 88 M.S.P.R. 236, 241 (2001)).

§ 1201.4(s). It must be more than conclusory, plausible on its face, and material to the legal issues in the appeal. Id. Case: 24-1622 Document: 44 Page: 6 Filed: 08/06/2025

On appeal, Mr. Yomi mainly challenges the Board’s de- cision that he failed to non-frivolously allege that his dis- closures identified violations of the Pendleton Act and merit system principles,4 gross mismanagement, or abuse of authority. We reject Mr. Yomi’s arguments and affirm the Board’s decision. The Board properly concluded that Mr. Yomi failed to non-frivolously allege that he engaged in protected whis- tleblowing activity. First, Mr. Yomi’s alleged disclosures do not evidence a violation of the Pendleton Act or merit system principles, nor do they clearly implicate an identi- fiable violation of any other law, rule, or regulation. A dis- interested observer would not reasonably conclude that the Navy was required to provide Mr. Yomi a reason for his non-selection in these circumstances or a hiring process en- tirely free from the discretion of management. That Mr. Yomi insists strongly on his subjective belief that the Navy violated a law, rule, or regulation is insufficient to make the requisite non-frivolous allegation. Second, Mr. Yomi’s allegations do not non-frivolously allege gross mismanagement or abuse of authority. Mr. Yomi clearly disagrees with both the process and sub- stance of his supervisors’ decisions, but “[m]ere differences of opinion between an employee and his agency superiors as to the proper approach to a particular problem or the

4 At the jurisdictional stage, Mr. Yomi was not re- quired to identify a particular statutory or regulatory pro- vision that he believed was violated if his “statements and the circumstances surrounding the making of those state- ments clearly implicate[d] an identifiable violation of law, rule, or regulation.” Langer, 265 F.3d at 1266. But just as Mr. Yomi’s statements and the surrounding circumstances do not evidence a violation of the Pendleton Act or merit system principles, neither do they clearly implicate an identifiable violation of any other law, rule, or regulation. Case: 24-1622 Document: 44 Page: 7 Filed: 08/06/2025

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most appropriate course of action do not rise to the level of gross mismanagement.” White, 391 F.3d at 1381. Simi- larly, nothing Mr. Yomi alleges gives us a basis to find an abuse of authority. For example, no disinterested observer would believe Mr. Yomi’s supervisors’ statements ad- versely affected anyone’s rights or resulted in personal gain or advantage. Because we conclude that Mr. Yomi failed to non-frivo- lously allege that he engaged in any form of protected whis- tleblowing activity, we hold that the Board properly dismissed Mr. Yomi’s appeal for lack of jurisdiction. CONCLUSION We have considered Mr. Yomi’s remaining arguments and find them unpersuasive. For the foregoing reasons, we affirm the Board’s dismissal for lack of jurisdiction. AFFIRMED COSTS No costs.