Sherman S. Startz, Jr. v. Department of the Army

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SHERMAN S. STARTZ, JR.,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2025-1375
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-1221-23-0258-W-1.
______________________
Decided: October 20, 2025
______________________
SHERMAN S. STARTZ , JR., Bremerton, WA, pro se.
BLAKE WILLIAM COWMAN , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
TARA K. H OGAN , PATRICIA M. M CCARTHY, Y AAKOV R OTH .
______________________
Before D YK , H UGHES, and STOLL, Circuit Judges.
PER C URIAM.
Case: 25-1375 Document: 33 Page: 1 Filed: 10/20/2025

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STARTZ v. ARMY 2
Sherman Shelby Startz, Jr., petitions pro se for review
of a final decision of the Merit Systems Protection Board
(“Board”) denying his request for corrective action follow-
ing his termination. We affirm.
I
On January 31, 2022, Mr. Startz began work as a Con-
struction Control Inspector for the United States Army (the
“Agency”) at Fort Wainwright. He was subject to a two-
year probationary period. His work included monitoring
government construction contractors. During his proba-
tionary period, Mr. Startz was terminated on June 27,
2022.
In January 2023, Mr. Startz filed a complaint with the
Office of Special Counsel (“OSC”) asserting an allegation of
whistleblower retaliation. Mr. Startz alleged he was sub-
jected to a hostile work environment and eventually termi-
nated because he reported concerns of misconduct to his
direct supervisor, David Zrna. On March 22, 2023, OSC
notified Mr. Startz that it had closed the investigation.
Following OSC’s action, Mr. Startz filed an individual
right of action (“IRA”) appeal with the Board under
5 U.S.C. § 1221(a). He stated that he did not want a hear-
ing. The Board considered Mr. Startz’s allegations that he
witnessed a litany of misconduct, including that Agency of-
ficials were not properly overseeing work completed by con-
tractors, that a contractor was submitting fictitious
specification numbers for construction materials, and that
he was instructed by agency personnel to sign for construc-
tion materials that were not delivered. Mr. Startz then al-
leged that he refused to sign for the non-existent deliveries
and raised these concerns to Mr. Zrna on or about June 24,
2022. During discovery, Mr. Starz filed a motion to compel
discovery, alleging that the Agency “continually ignored”
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STARTZ v. ARMY 3
his discovery requests. S. App’x 45. 1 Despite Mr. Startz’s
failure to include a copy of his requests in his motion, see
5 C.F.R. § 1201.73(c)(1)(i), the administrative judge (“AJ”)
granted it. The Agency produced additional documents,
which Mr. Startz asserted “in no way can be considered
suitable” as a response to his discovery requests.
S. App’x 68–69.
The AJ issued an initial decision on January 8, 2024,
denying Mr. Startz’s request for corrective action. The AJ
found that Mr. Startz did not meet his initial burden to
prove (1) that he made any disclosure to Mr. Zrna that the
contractors were submitting fictitious specification num-
bers for flooring materials; (2) that he was ever asked by a
supervisor to sign for undelivered flooring materials;
(3) that he had a reasonable belief that the contractors
were submitting fictitious specification numbers for floor-
ing materials; and (4) that the alleged disclosure of con-
tractor misconduct, if it occurred, was related to any
government misconduct. As a result, the AJ determined
that Mr. Startz failed to demonstrate a prima facie case
that he was terminated because he engaged in a protected
disclosure under 5 U.S.C. § 2302(b)(8) or any protected ac-
tivities under § 2302(b)(9). The Board then denied
Mr. Startz’s petition for review, issuing a final order af-
firming the initial decision on January 17, 2025, and mak-
ing it the final decision of the Board. Mr. Startz now
petitions for review of the Board’s decision. We have juris-
diction under 28 U.S.C. § 1295(a)(9).
II
On review, Mr. Startz asserts the Board made several
errors that warrant reversal or remand. We set aside the
decision of the Board if it is “(1) arbitrary, capricious, an
1 “S. App’x” refers to the Supplemental Appendix
submitted by the Agency. Dkt. No. 18.
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STARTZ v. ARMY 4
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); accord Miller
v. Fed. Deposit Ins. Co., 818 F.3d 1357, 1359 (Fed. Cir.
2016). This review “is limited.” Bryant v. Dep’t of Veterans
Affs., 26 F.4th 1344, 1346 (Fed. Cir. 2022). Ultimately, we
conclude that the Board’s findings are supported by law
and substantial evidence.
Mr. Startz primarily contends that the Board’s finding
that he did not make a protected disclosure was not sup-
ported by substantial evidence. Under the Whistleblower
Protection Act of 1989 (“WPA”), Pub. L. No. 101-12,
103 Stat. 16 (codified as amended in scattered sections of
5 U.S.C.), an employee in Mr. Startz’s position may not be
terminated because of “any disclosure of information by
[the] employee . . . which the employee . . . reasonably be-
lieves evidences—(i) any violation of any law, rule, or reg-
ulation, or (ii) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific
danger to public health or safety.” See 5 U.S.C.
§ 2302(b)(8)(A). To establish a “reasonable belief” that mis-
conduct occurred, the employee need not prove the miscon-
duct actually occurred. Drake v. Agency for Int’l Dev.,
543 F.3d 1377, 1382 (Fed. Cir. 2008). Instead, reasonable
belief is determined by an objective test that asks,
“whether a disinterested observer 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
[WPA].” Young v. Merit Sys. Prot. Bd., 961 F.3d 1323, 1328
(Fed. Cir. 2020) (citing Giove v. Dep’t of Transp., 230 F.3d
1333, 1338 (Fed. Cir. 2000)). This objective test is based on
what was known by the employee at the time of the disclo-
sure. Edenfield v. Dep’t of Veterans Affs., 54 F.4th 1357,
1361 (Fed. Cir. 2022).
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STARTZ v. ARMY 5
The Board did not err in determining that Mr. Startz
did not present sufficient evidence that, at the time of his
alleged disclosure to Mr. Zrna, he was aware of any govern-
ment misconduct.2 He alleged that he had been asked by
agency personnel to sign for fictitious deliveries of materi-
als. However, the Board noted that the declarations that
Mr. Startz submitted only demonstrated that contractors,
rather than his Agency supervisors, had asked him to do
this. The Board also did not err in finding that Mr. Startz
failed to provide evidence to substantiate his argument
that he had a reasonable belief that Agency officials were
improperly supervising contractors. Because Mr. Startz
failed to provide evidence that he was reasonably aware of
government misconduct at the time of his alleged disclo-
sure to Mr. Zrna, we hold that the Board’s decision was
supported by substantial evidence.3
2 Because the WPA’s purpose is “to encourage gov-
ernment personnel to disclose government wrongdoing,” it
does not “extend whistleblower protection to claims involv-
ing purely private conduct” such as contractor misconduct
that does not involve government action. See McCarthy
v. Soc. Sec. Admin., No. 2024-1552, 2025 WL 1622032,
at *3 (Fed. Cir. June 9, 2025) (nonprecedential) (quoting
Oram v. Merit Sys. Prot. Bd., No. 2021-2307, 2022
WL 866327, at *2 (Fed. Cir. Mar. 23, 2022) (nonpreceden-
tial)).
3 Mr. Startz argues that the Board erred in its con-
sideration of his submission of his daily reports, which he
argues show that he witnessed the delivery of DensDeck, a
roofing material, on May 10, 2022, only to see that the con-
tractor actually installed a cheaper alternative on June 2,
2022. In its decision, the Board only referenced allegations
of fraud related to “flooring materials,” did not reference
Mr. Startz’s allegations related to roofing materials, and
stated that the daily reports “shed no light whatsoever on
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STARTZ v. ARMY 6
Mr. Startz also submitted evidence to the Board in the
form of materials that he acquired after his alleged disclo-
sure, which in his view, confirmed the existence of govern-
ment misconduct, but these are not relevant to the question
of what he knew at the time of his alleged disclosure. See
Edenfield, 54 F.4th at 1361.
Mr. Startz also raises procedural arguments. We re-
view the Board’s discovery and evidentiary rulings for
abuse of discretion. Knox v. Dep’t of Just., 125 F.4th 1059,
1066 (Fed. Cir. 2025). Such matters are only overturned if
an abuse “caused substantial harm or prejudice to [a peti-
tioner’s] rights which could have affected the outcome of
the case.” Id. at 1066–67 (quoting Curtin v. Off. of Pers.
Mgmt., 846 F.2d 1373, 1378 (Fed. Cir. 1988)).
First, Mr. Startz argues that the Board was required to
provide him a hearing in order to make a credibility deter-
mination as to his sworn testimony. Mr. Startz waived his
right to a hearing, and the Board did not abuse its discre-
tion by declining to order one sua sponte. Next, Mr. Startz
argues that the Board erred in failing to order additional
discovery after the entry of Mr. Startz’s final evidentiary
filing, which noted that he still had not received all the doc-
umentation he had requested from the Agency. As the
Board noted in its final decision, Mr. Startz did not file an
additional motion to compel, and the Board did not abuse
its discretion here either.
Finally, Mr. Startz has moved to supplement the rec-
ord with “newly obtained material evidence that was not
[Mr. Startz’s] allegations.” S. App’x 10. Even if we ac-
cepted Mr. Startz’s characterization of the reports, they do
not prove that Mr. Startz had reason to believe the govern-
ment was aware of the misconduct at the time of his alleged
disclosure to Mr. Zrna. Therefore, any error on the Board’s
part with regard to this evidence is harmless.
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STARTZ v. ARMY 7
available at the time of the original proceedings” concern-
ing alleged contractor misconduct. Mot. to Supplement the
Record 1, Dkt. No. 21. Mr. Startz apparently asserts that
this information is relevant because it tends to corroborate
his underlying allegations of contractor and official miscon-
duct. But Mr. Startz has not indicated that he was aware
of this new material at the time he made the alleged dis-
closure, he has not provided a suitable justification for why
the evidence was not timely presented, and the Board’s al-
ternative holding—that disclosure of wrongdoing commit-
ted by a non-Federal Government entity is insufficient—
would nonetheless apply. Thus, the new material is not
relevant to this petition for review, and we deny the mo-
tion.
We have considered Mr. Startz’s remaining arguments
and find them unpersuasive.
AFFIRMED
COSTS
No costs.
Case: 25-1375 Document: 33 Page: 7 Filed: 10/20/2025

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