Christopher R. Chin-Young v. Department of the Army

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHRISTOPHER R. CHIN-YOUNG,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2023-1510
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-15-1030-l-1.
______________________
Decided: September 20, 2023
______________________
CHRISTOPHER CHIN-Y OUNG, Tallahassee, FL, pro se.
YARIV S. P IERCE , Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BRIAN M.
BOYNTON, P ATRICIA M. MCCARTHY , D OUGLAS K. MICKLE.
______________________
Before P ROST , HUGHES , AND STOLL , Circuit Judges.
P ER CURIAM .
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CHIN- YOUNG v. ARMY 2
Mr. Christopher Chin-Young appeals a decision of the
Merit Systems Protection Board (Board) denying his peti-
tion for review of the administrative judge’s decision to sus-
tain his removal. Because the Board correctly found it did
not have jurisdiction to decide the merits of Mr. Chin-
Young’s detail to another directorate preceding his re-
moval, and because the Board did not err in denying Mr.
Chin-Young’s claims of whistleblower retaliation, return
rights, or harmful procedural error, we affirm.
I
In 2013, Mr. Chin-Young was employed as the Deputy
Director (Supervisory Program Analyst) for the Chief Inte-
gration Office (CXO) Directorate in the Office of the Army
Chief Information Officer (Agency). In 2014, the Agency
“began plans to reorganize and dissolve the CXO Direc-
torate.” S.A. 2.1 At this point, Mr. Chin-Young was detailed
to work in the Cyber Security Directorate instead.
In April 2014, Mr. Chin-Young left his detail and pre-
pared for deployment to Afghanistan, where he was to
serve in a civilian capacity for a one-year tour through the
Ministry of Defense Advisors (MoDA) program. He arrived
in Afghanistan around July 3, 2014. Soon after his arrival,
Mr. Chin-Young submitted a complaint to the Special In-
spector General for Afghanistan Reconstruction (SIGAR)
reporting allegations of fraud, waste, and abuse of funds.
After Mr. Chin-Young had served only six weeks abroad,
the Senior Telecommunications Advisor working with Mr.
Chin-Young in Afghanistan recommended that Mr. Chin-
Young be immediately redeployed because he had “demon-
strated an inability to adjust . . .[,] caused Senior Leaders
to question his ability . . ., and [was] a negative influence
to other team members.” S.A. 119.
1 “S.A.” refers to the supplemental appendix the gov-
ernment filed with its responsive brief.
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CHIN- YOUNG v. ARMY 3
Due to this recommendation, roughly two months after
arriving in Afghanistan, Mr. Chin-Young returned to the
United States. On September 8, 2014, he sent an email to
his former supervisor in the Cyber Security Directorate in-
forming him that he was returning from his MoDA position
in Afghanistan and would be taking sick and administra-
tive leave for a few weeks before returning to work.
On November 3, 2014, Mr. Chin-Young was issued an
official memorandum informing him that his new detail
would be with the Cyber Security Directorate in the Pro-
gram Integration and Training Division at the Pentagon.
He also received an email from the Chief of Human Re-
sources informing him that his supervisor for this detail
position would be Ms. Autumn Aquinaldo. His grade and
pay in this detail were the same as the grade and pay he
had received when he was at the CXO Directorate and re-
mained the same until his removal.
After reporting to his new Cyber Security Directorate
detail only one time (on December 17, 2014), Mr. Chin-
Young “effectively declined the detail and refused to report
for work.” S.A. 3 (citing S.A. 38). Instead, he maintained
that he was working remotely in his former capacity at the
CXO Directorate. He was reminded on numerous occasions
by his then-supervisor (Ms. Aquinaldo), his former super-
visor (Mr. Lundgren), the Director of Cybersecurity
(Ms. Miller), and the Deputy Chief Information Officer
(Mr. Wang) that he was currently detailed to the Pentagon
Cyber Security Directorate and was required to appear at
his workstation at the Pentagon. Still, he argued that his
detail was improper, Ms. Aquinaldo was his subordinate
(not his supervisor), and he was entitled to keep working
at the CXO Directorate. Other than four hours on Decem-
ber 17, 2014, Mr. Chin-Young never reported to work at his
new detail in the Cyber Security Directorate.
On May 29, 2015, the Agency issued Mr. Chin-Young a
memorandum proposing his removal from the federal
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CHIN- YOUNG v. ARMY 4
service for misconduct. The Agency based his removal on
five charges: (1) Absence without Leave (AWOL), (2) Fail-
ure to Comply with Leave Procedures, (3) Failure to Follow
Instructions, (4) Insolence, and (5) Lack of Candor.
Mr. Chin-Young submitted a written response to the
memo. But despite being given an opportunity to review
the evidence supporting his removal, the Agency found he
did not do so. On July 24, 2015, the Agency deciding official
sustained all charges and specifications in the May 29,
2015 memorandum. The Agency removed Mr. Chin-Young
from service effective July 31, 2015.
II
Mr. Chin-Young filed an appeal with the Board chal-
lenging his removal and raising affirmative defenses, in-
cluding retaliation, whistleblower reprisal, and harmful
procedural error. After a four-day hearing, an administra-
tive judge issued a 76-page initial decision which held that
the Agency had proved all charges for Mr. Chin-Young’s re-
moval and that Mr. Chin-Young had failed to prove his af-
firmative defenses. The Board affirmed that decision, with
a few modifications, on January 13, 2023.
Mr. Chin-Young now appeals the Board’s decision.2 We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
III
We review Board decisions for whether they are “(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise not
2 Mr. Chin-Young subsequently filed five other ap-
peals with this court that are not decided here. Chin-Young
v. Dep’t of the Army, No. 23-1587 (Fed. Cir.); Chin-Young v.
Dep’t of the Army, No. 23-1588 (Fed. Cir.); Chin-Young v.
Merit Sys. Prot. Bd., No. 23-1589 (Fed. Cir.); Chin-Young v.
Merit Sys. Prot. Bd., No. 23-1590 (Fed. Cir.); Chin-Young v.
Dep’t of the Army, No. 23-1595 (Fed. Cir.).
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CHIN- YOUNG v. ARMY 5
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 legal conclusions de novo and factual
findings for substantial evidence. Salmon v. Soc. Sec. Ad-
min., 663 F.3d 1378, 1381 (Fed. Cir. 2011); Moravec v. Off.
of Pers. Mgmt., 393 F.3d 1263, 1266 (Fed. Cir. 2004).
Whether the Board has jurisdiction over an appeal is a
question of law we review de novo. Coradeschi v. Dep’t of
Homeland Sec., 439 F.3d 1329, 1331 (Fed. Cir. 2006). Alt-
hough pro se pleadings are generally held to less stringent
standards than pleadings drafted by counsel, pro se liti-
gants still bear the burden of establishing jurisdiction over
their claims. Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885,
886 (Fed. Cir. 1998).
IV
On appeal, Mr. Chin-Young identifies four instances he
believes to be reversible error. In particular, he argues that
(1) his removal was improper because it was based solely
on an “illegitimate” detail to the Cyber Security Direc-
torate, (2) the Board erred by not finding whistleblower re-
taliation, (3) the Board erred by not addressing his
argument that he had the right to return to his job at the
CXO Directorate, and (4) it was harmful procedural error
for the Agency not to send him the evidence it relied on in
deciding to remove him. We affirm the Board’s decision.
A
We start with Mr. Chin-Young’s argument that his de-
tail to the Cyber Security Directorate was “illegitimate,”
and that he therefore was not required to report to work at
this detail. Informal Op. Br. at 18. We agree with the Board
that such an argument goes to the merits of the Agency’s
decision to detail him, and thus does not fall within the
Board’s jurisdiction.
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CHIN- YOUNG v. ARMY 6
The Board does not have jurisdiction over the merits of
an Agency’s reassignment or detail if that employment ac-
tion does not result in the loss of grade or pay for that em-
ployee. Artmann v. Dep’t of the Interior, 926 F.2d 1120,
1122 (Fed. Cir. 1991). This is true even if the reassignment
or detail “reduces the employee’s status, duties, or respon-
sibilities.” Id.3 Here, Mr. Chin-Young debates the legality
of his detail to the Cyber Security Directorate. But the fact
that he did not suffer a loss in grade or pay as a result of
that detail is supported by substantial evidence. Indeed,
his removal papers from 2015 reflect that he had the same
GS-15 grade and pay when he was removed from the
Agency. Thus, whether the Agency’s decision to detail him
to the Cyber Security Directorate was unlawful is not a
question for the Board because the detail itself was not an
adverse action.
Moreover, Mr. Chin-Young was not entitled to unilat-
erally refuse to report to his detail even if he believed it to
be illegitimate. Rather, an employee who is reassigned to
different job duties and who questions the legal basis for
that reassignment “must perform his assigned job duties
and then petition for relief through the appropriate griev-
ance proceedings.” Hamlin v. U.S. Postal Serv., 1998 WL
887041, at *2 (Fed. Cir. Dec. 15, 1998); accord Bigelow v.
Dep’t of Health & Human Servs., 750 F.2d 962, 965–66
(Fed. Cir. 1984). We need not reach the merits of Mr. Chin-
Young’s detail here because, even if it were somehow im-
proper, he still would have been required to report to work
and protest the legality of the detail while doing so.
3 Although there are limited exceptions to this gen-
eral rule, such as for “constructive demotion” when an em-
ployee’s prior job title should have been reclassified at a
higher pay grade, it is unclear how such an exception would
apply here.
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CHIN- YOUNG v. ARMY 7
Mr. Chin-Young’s arguments can also be read as argu-
ments that his detail never happened at all. We are simi-
larly unpersuaded by this argument. Substantial evidence
supports the Board’s conclusion that Mr. Chin-Young was
detailed from his role at the CXO Directorate to the Cyber
Security Directorate. For example, the record supports the
Board’s findings that the Agency had begun to phase out
the CXO Directorate in 2014 (S.A. 216–24); Mr. Chin-
Young had already been detailed to the Cyber Security Di-
rectorate before his deployment to Afghanistan (S.A. 486–
93); when he returned from Afghanistan, Mr. Chin-Young
emailed his former supervisor at the Cyber Security Direc-
torate that he would be returning to work (S.A. 123); and
the Chief of Human Resources notified Mr. Chin-Young of
his new detail to the Cyber Security Directorate in writing
upon his return to the United States (S.A. 133, 148–52).
The record also includes numerous emails where his col-
leagues questioned why he was not at his detail at the
Cyber Security Directorate. E.g., S.A. 37, 45, 48–49, 127–
30, 139, 144–45, 153–60.
Mr. Chin-Young’s argument that he was not detailed to
the Cyber Security Directorate rests on his belief that he
had never been released from his MoDA assignment when
he returned early from Afghanistan, and so the Agency
could not have detailed him to a different position. But the
administrative judge found Mr. Chin-Young’s testimony on
this point to be unreliable and inconsistent with the emails
he sent around that time. Rather, she credited the Agency’s
witnesses’ testimony and the August 28, 2014 “Letter of
Release for Redeployment” as proof that Mr. Chin-Young
had been formally released from the MoDA assignment.
S.A. 35–36 (referring to S.A. 121). Mr. Chin-Young argues
that this letter does not establish a formal release and is
just a travel authorization document. But substantial evi-
dence supports the administrative judge’s and Board’s con-
trary findings. In particular, the document states an
“[e]ffective date of release” of “29 August 2014” and
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CHIN- YOUNG v. ARMY 8
explicitly provides that Mr. Chin-Young “will not be return-
ing.” S.A. 121. This, paired with a lack of evidence suggest-
ing that something more was required to release him from
the MoDA assignment, and considering Mr. Chin-Young’s
own email to his former supervisor letting him know that
he was available to restart his work in the United States,
constitutes substantial evidence that he was, in fact, re-
leased from the MoDA assignment.
Given the above, there is substantial evidence to sup-
port the Board’s finding that Mr. Chin-Young was detailed
to the Cyber Security Directorate. And whether this detail
was legally improper is beyond the Board’s jurisdiction be-
cause it did not result in a loss of grade or pay.
B
Next, we address Mr. Chin-Young’s argument that he
was removed from service because of unlawful whistle-
blower retaliation. We hold that the Board did not err by
concluding there was no whistleblower retaliation in
Mr. Chin-Young’s case.
To establish a claim for whistleblower retaliation, an
employee must prove by a preponderance of the evidence
that (1) the employee made a protected disclosure under
5 U.S.C. § 2302(b)(8), (2) they were subject to an adverse
personnel action, and (3) the protected disclosure was a
contributing factor to the adverse personnel action. John-
ston v. Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. Cir.
2008). If the employee provides that proof, then the burden
of persuasion shifts to the agency to show by clear and con-
vincing evidence that it would have taken the same person-
nel action even without the protected disclosure. Whitmore
v. Dep’t of Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012). We
consider the Carr factors in assessing whether an agency
has satisfied its clear and convincing evidence burden:
(1) “the strength of the agency’s evidence in support of its
personnel action”; (2) “the existence and strength of any
motive to retaliate on the part of the agency officials who
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CHIN- YOUNG v. ARMY 9
were involved in the decision”; and (3) “any evidence that
the agency takes similar actions against employees who
are not whistleblowers but who are otherwise similarly sit-
uated.” Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed.
Cir. 1999).
Here, the Board concluded that Mr. Chin-Young made
a protected disclosure under § 2302(b)(8) when he filed his
SIGAR complaint while in Afghanistan in 2014, in which
he alleged fraud, waste, and abuse of funds. The Board also
concluded that the officials who proposed or decided to re-
move Mr. Chin-Young had knowledge of that complaint,
and so it was theoretically possible that the SIGAR com-
plaint was a contributing factor in their removal decision.
However, the Board went on to consider the Carr factors
and concluded that the Agency would have removed Mr.
Chin-Young regardless of that SIGAR complaint. In partic-
ular, the Board pointed to the administrative judge’s deci-
sion to sustain the charges of AWOL, failure to follow leave
procedures, failure to follow instructions, insolence, and
lack of candor because of the abundant evidence that Mr.
Chin-Young unilaterally rejected his detail orders and did
not report to work.
We agree with the Board. Because the legitimate rea-
sons for Mr. Chin-Young’s removal were so compelling
here, the Board’s conclusion that he would have been re-
moved regardless of the SIGAR complaint is supported by
substantial evidence. Moreover, the Board properly consid-
ered the Carr factors in its analysis and we discern no legal
error.4
4 Although the government agrees with the Board’s
conclusion that there was no whistleblower retaliation, it
argues before us that the Board erred in finding that the
SIGAR complaint was a protected disclosure in the first
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CHIN- YOUNG v. ARMY 10
On appeal, Mr. Chin-Young speculates about various
sources of retaliatory animus that he argues should lead to
reversal. None of these theories lead us to a different out-
come. For example, Mr. Chin-Young claims that we should
apply the “[c]at’s [p]aw theory of law”5 because (1) his for-
mer supervisor, Mr. Krieger, was the one who informed the
new Director of the Cyber Security Directorate, Mr. Wang,
that Mr. Chin-Young’s position at the CXO Directorate was
“abolished,” and (2) Mr. Krieger’s reason for doing so was
to “get[] back at the Appellant for not containing [a] class
action complaint” against Mr. Krieger. Informal Op. Br. at
13. As another example, Mr. Chin-Young argues that a
memorandum written by a colleague in Afghanistan,
Dr. Warner, recommending his deployment back to the
United States was improperly considered by the official
who issued his proposal for removal and “inflame[d]” that
official’s “retaliatory animus.” Informal Op. Br. at 16. But
these speculative arguments are disagreements on issues
of fact and are not supported by the record.
Mr. Chin-Young also references alleged protected dis-
closures other than his SIGAR complaint, including his vo-
cal opposition to the Agency’s hiring of other employees.
The administrative judge addressed most of these other al-
leged protected disclosures and found that they could not
have been motivating factors in his removal because the
removing officials were not aware of the disclosures. These
conclusions are supported by substantial evidence because
Mr. Chin-Young did not provide evidence that these other
place. We need not reach this issue because we agree with
the Board’s analysis on the Carr factors.
5 A “cat’s paw” issue arises in the context of a decid-
ing official being improperly influenced by someone with
animus. See, e.g., King v. Dep’t of Army, 602 F. App’x 812,
815 n.1 (Fed. Cir. 2015) (citing Staub v. Proctor Hosp., 562
U.S. 411 (2011)).
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CHIN- YOUNG v. ARMY 11
alleged disclosures were provided to the removing officials.
But even if they were protected disclosures, the Agency
would succeed on the Carr factors for the same reason as
with respect to the SIGAR complaint: the record provides
substantial evidence that the Agency would have removed
Mr. Chin-Young regardless. As explained above, the record
is replete with evidence that Mr. Chin-Young refused to
show up to his detail position at the Cyber Security Direc-
torate and instead unilaterally re-appointed himself to a
position at the CXO Directorate that no longer existed.
Thus, the government has met its burden of persuasion on
the Carr factors because of these strong, legitimate reasons
for Mr. Chin-Young’s removal.
Finally, to the extent Mr. Chin-Young argues retalia-
tion based on his Equal Employment Opportunity (EEO)
activity, these issues are not properly before us. As Mr.
Chin-Young himself acknowledges, although he “raised
claims of discrimination and retaliation based on his race
and prior protected EEO activities . . . discrimination is not
a part of this appeal.” Informal Op. Br. at 7.
For these reasons, we affirm the Board’s conclusion
that Mr. Chin-Young’s removal was not a result of retalia-
tion for protected whistleblowing activity.
C
We turn next to Mr. Chin-Young’s argument that the
Board erred because it did not address his argument that
he had the right to return to his job at the CXO Directorate
under 10 U.S.C. § 1586, a statute that gives those deployed
abroad a right to return to their positions in the United
States once they have successfully completed their tour.
We find no error with the Board’s conclusion that Mr. Chin-
Young did not establish a claim under § 1586 because sub-
stantial evidence supports its finding that Mr. Chin-Young
retained his position of record until removed from service.
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CHIN- YOUNG v. ARMY 12
Mr. Chin-Young argues that it was error for the Board
not to consider his arguments under § 1586. But even
though the Board found his § 1586 arguments to be for-
feited, it also held that Mr. Chin-Young had not established
a claim under § 1586 because “[r]egardless [of whether the
arguments were forfeited], the record reflects that the ap-
pellant’s position of record remained the same.” S.A. 18
(emphasis added). Thus, the Board did consider the merits
of this argument, even though it found it to be forfeited. For
this reason, Mr. Chin-Young’s argument that the Board
erred in not considering the argument is unpersuasive.
We are also unpersuaded as to the merits of Mr. Chin-
Young’s return-rights argument. Section 1586 entitles an
employee who has been assigned to a position abroad to re-
turn “without reduction in the seniority, status, and tenure
held by the employee immediately before his assignment to
duty outside the United States.” 10 U.S.C. § 1586(c). If the
employee’s former position no longer exists, however, the
statute provides that the employee can be placed in a dif-
ferent position so long as they retain “rights and benefits
equal to the rights and benefits of, and in a grade equal to
the grade of, the position which he held immediately before
his assignment to duty outside the United States.” Id.
§ 1586(c)(2). Here, the Board’s finding that Mr. Chin-
Young retained his position of record until his removal is
supported by substantial evidence—his removal docu-
ments show that he maintained the same grade and pay up
until he was removed. The Board’s finding that the CXO
Directorate was effectively dissolved is also supported by
substantial evidence, including testimony that the admin-
istrative judge appeared to find credible. S.A. 33 (citing the
consistent testimonies by the Chief Information Officer,
the Deputy Chief Information Officer, and the Chief of Hu-
man Resources). Given these facts, Mr. Chin-Young has not
established a violation of his return rights under § 1586.
Mr. Chin-Young has also failed to show that the Agency
violated § 1586 for a separate, independent reason: the
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CHIN- YOUNG v. ARMY 13
statute applies only to employees “who satisfactorily com-
plete[]” their duty abroad. 10 U.S.C. § 1586(b)(2). Here,
Mr. Chin-Young has not shown that he satisfactorily com-
pleted his duties in Afghanistan. To the contrary, the evi-
dence of record shows that he came back to the United
States ten months early and that at least one other em-
ployee in Afghanistan recommended that he be sent back
because of unsatisfactory work.
For these reasons, Mr. Chin-Young has not shown that
the Agency violated § 1586, nor that the Board erred in
handling its argument to that effect.
D
Finally, we address Mr. Chin-Young’s argument that
the Agency committed harmful procedural error by not
making accessible the evidence it relied on in deciding to
remove him. This argument is contrary to the substantial
evidence of record, and the Board did not err by concluding
that offering to make the materials available upon request
was not a harmful procedural error.
We have previously held that there is no harmful pro-
cedural error where an agency has provided an employee
with access to the documents it relied upon in making its
removal decision, even if the type of access granted was in-
convenient. Novotny v. Dep’t of Transp., 735 F.2d 521, 523
(Fed. Cir. 1984); see also Harding v. U.S. Naval Acad., 567
F. App’x 920, 925 (Fed. Cir. 2014) (“[P]roviding access to
the materials the agency relied upon to support the re-
moval action was sufficient to satisfy any possible due pro-
cess concerns.”); Charity v. Gen. Servs. Admin., 180 F.
App’x 952, 954 (Fed. Cir. 2006) (concluding there was no
harmful procedural error where “the record showed that
the agency offered [the employee] access to the evidence
it relied on in its charges but that there was no showing
that [the employee] requested and was denied such ac-
cess”).
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CHIN- YOUNG v. ARMY 14
Here, substantial evidence supports the Board’s con-
clusion that the Agency made the evidence accessible to
Mr. Chin-Young by offering it for inspection upon request.
E.g., S.A. 181–82 (Notice of Proposed Removal informing
Mr. Chin-Young that he had the right to reply to the notice
and “to review the material relied upon in this matter,” by
contacting a Human Resource Specialist whose contact in-
formation was provided). And while Mr. Chin-Young im-
plies that he tried to access the documents but was refused
access, this allegation is not supported by the record. As
the administrative judge explained in her decision, the only
evidence that Mr. Chin-Young tried to access these docu-
ments was his own testimony, and the administrative
judge did not find that testimony credible. S.A. 89 n.33. In
contrast, the other testimony—which the administrative
judge did find credible—and the email evidence on this
point show (1) that Mr. Chin-Young was informed he
needed to contact the Human Resource Specialist to access
the evidence supporting his removal and (2) that he did not
request those documents. Thus, there is substantial evi-
dence that the Agency made the materials accessible to Mr.
Chin-Young and that Mr. Chin-Young was not denied ac-
cess.
Like in Charity, this type of access is sufficient to meet
the Agency’s procedural burden. 180 F. App’x at 955. Thus,
the Board properly applied our prior decisions in holding
that there was no harmful procedural error.
V
We have considered the remainder of Mr. Chin-Young’s
arguments and find them unpersuasive. Thus, we affirm
the Board’s decision denying Mr. Chin-Young’s petition for
review of the initial decision that sustained his removal.
AFFIRMED
COSTS
No costs.
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