United States Court of Appeals for the Federal Circuit ______________________

DAVID A. RICKEL, Petitioner

v.

DEPARTMENT OF THE NAVY, Respondent ______________________

2020-2147 ______________________

Petition for review of the Merit Systems Protection Board in No. AT-1221-19-0576-W-1. ______________________

Decided: April 18, 2022 ______________________

DONALD E. PINAUD, JR., Law Office of Don Pinaud, All Florida Justice, LLC, Jacksonville, FL, argued for peti- tioner.

ALISON VICKS, Commercial Litigation Branch, Civil Di- vision, United States Department of Justice, Washington, DC, argued for respondent. Also represented by BRIAN M. BOYNTON, ALLISON KIDD-MILLER, ROBERT EDWARD KIRSCHMAN, JR. ______________________

Before LOURIE, HUGHES, and CUNNINGHAM, Circuit Judges. Case: 20-2147 Document: 47 Page: 2 Filed: 04/18/2022

2 RICKEL v. NAVY

HUGHES, Circuit Judge. David A. Rickel appeals a decision of the Merit Systems Protection Board finding that the Department of the Navy had proven by clear and convincing evidence that it would have removed Mr. Rickel even absent his protected whis- tleblowing activity. Because substantial evidence supports the Board’s conclusion that the agency met its clear and convincing burden, we affirm. I A Mr. Rickel was a Fire Protection Specialist with the First Coast Navy Fire and Emergency Services (Fire Ser- vices) at Naval Air Station Jacksonville. In 2014, the De- partment of Navy appointed him—in his role as Fire Protection Specialist—to Assistant Chief of Training. In this position, Mr. Rickel was responsible for determining training requirements for the department, reviewing train- ing records and charts, and ensuring that the Fire Services firefighters’ certifications were maintained and current. He was the only Fire Services employee assigned to the Fire Services training department. In late 2016, Mr. Rickel applied for the department’s open Deputy Fire Chief position. Fire Chief Mark Brusoe ultimately selected James Gray, an Assistant Chief of Op- erations with the Fire Services. The agency promoted Mr. Gray to Deputy Fire Chief. In an email sent to Chief Brusoe, Mr. Rickel questioned the promotion and Mr. Gray’s candor in his application, requesting infor- mation about the selection process and “feedback concern- ing his questions from the Executive Officers and from HR personnel ‘so that [he] may be a better competitor in the future.’” Appx8. He also “alleg[ed] that at least 5 unidenti- fied candidates had been promoted to ‘upper level positions’ who lacked either credentials or other stated require- ments” and “that unidentified lower level employees had Case: 20-2147 Document: 47 Page: 3 Filed: 04/18/2022

RICKEL v. NAVY 3

failed to meet the minimum standards required for their positions,” requesting that “a minimum requirement re- view be conducted by a neutral third party” because “such appointments pose[] a ‘life safety risk’ to the Navy, its ser- vice members and their families,” and others. Appx8. In April 2017, Deputy Chief Gray emailed Mr. Rickel explaining that the department had taken a “big hit” on training during the last inspection and suggesting that the department begin addressing the concerns about its train- ing program by getting the training records “up to speed.” Appx10. Deputy Chief Gray shared a “Self Inspection List”—which listed the minimum requirements for the training records—and directed Mr. Rickel “to proceed as he saw fit.