Case: 23-1981 Document: 46 Page: 1 Filed: 02/25/2025

United States Court of Appeals for the Federal Circuit ______________________

MARK L. SADLER, Petitioner

v.

DEPARTMENT OF THE ARMY, Respondent ______________________

2023-1981 ______________________

Petition for review of the Merit Systems Protection Board in No. DE-1221-16-0122-W-1. ______________________

Decided: February 25, 2025 ______________________

ADAM AUGUSTINE CARTER, The Employment Law Group, PC, Washington, DC, argued for petitioner. Also represented by ROBERT SCOTT OSWALD.

BRITTNEY M. WELCH, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, argued for respondent. Also represented by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, CORINNE ANNE NIOSI. ______________________

Before DYK, CLEVENGER, and HUGHES, Circuit Judges. Case: 23-1981 Document: 46 Page: 2 Filed: 02/25/2025

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DYK, Circuit Judge. Petitioner Mark L. Sadler was employed by the United States Army until the Army suspended him and then re- moved him for insubordination. Mr. Sadler alleged that the suspension and removal were retaliation in violation of the Whistleblower Protection Act and sought corrective ac- tion at the Merit Systems Protection Board (“Board”). In the course of the Board proceedings, Mr. Sadler moved for the Board to sanction the government for destruction of ev- idence. The Board ultimately denied Mr. Sadler’s motion for sanctions and his request for corrective action. We af- firm. BACKGROUND This case involves two whistleblower complaints filed by Mr. Sadler. Mr. Sadler contends the Board erred in con- cluding that his first Office of Special Counsel (“OSC”) com- plaint failed to sufficiently allege protected activity and, with respect to his second OSC complaint, the Board, though finding protected activity, erred in concluding that the government had shown by clear and convincing evi- dence that it would have taken the same actions absent the protected activity. The facts are somewhat complex. Mr. Sadler was employed by the Army starting in Sep- tember 2009 as a Computer Scientist, GS-13, in the Test Technology Division. In April 2012, Mr. Sadler was trans- ferred to the Data Sciences Division, where his supervisor was Branch Chief Quentin Stringham. On October 11, 2012, Mr. Stringham emailed Mr. Sad- ler to set “objectives for [Mr. Sadler’s] performance evalua- tion.” J.A. 2019. The October 12 email assigned Mr. Sadler the task of developing and supporting a “soft- ware testing program.” Id. On October 17, 2012, Mr. Stringham reiterated that he had asked Mr. Sadler “to put together a plan for developing a software testing pro- gram.” J.A. 1377. Case: 23-1981 Document: 46 Page: 3 Filed: 02/25/2025

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The software testing program was to be developed so that it “can be executed in conjunction with [the] contrac- tor.” 1 J.A. 2019. Developing the software testing program included delivering a testing process and a document that “outline[d] the testing process and all deliverables, respon- sibilities and measurements associated with [the] required testing activities.” J.A. 2019. Mr. Stringham proposed a completion date “no later than” December 31, 2012. Mr. Sadler “took steps in accordance with that plan, includ- ing reviewing the contract [relevant to the software testing program and] meeting with” employees of the contractor. J.A. 11; see also J.A. 2814–20 (Mr. Sadler’s testimony). However, Mr. Sadler testified that he came to believe that the assignment to create the software testing program “seemed to be inappropriate” because he “would have been injecting [himself] into the contractor’s [software] develop- ment processes,” which already included software testing. J.A. 2819–20. In January 2013, Mr. Sadler emailed his second-line supervisor, Tracy Mullendore, and a higher-level Army of- ficial, Colonel A. Scott Estes, with concerns about his as- signed task. That month, Mr. Sadler also submitted a revised project plan to Mr. Stringham. Mr. Sadler indi- cated he would provide a draft document describing the steps of the software testing process by February 14, 2013, and a final version of the document by March 18, 2013.

1 Mr. Sadler asserts, and the government does not dispute, that the “contractor,” J.A. 2019, Mr. Stringham re- ferred to in his October 12 email is IP Network Solutions. See Pet’r’s Br. 5–6; J.A. 2461–63. IP Network Solutions had a contract with the government to provide “software administration and maintenance as well as full software development life-cycle projects . . . in support of the Test Mission Management System.” J.A. 1737; see, e.g., J.A. 1715, 1737–41, 1871–1935. Case: 23-1981 Document: 46 Page: 4 Filed: 02/25/2025

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Mr. Sadler never provided either document to Mr. String- ham. On February 13, 2013, Mr. Sadler and Mr. Stringham met to discuss Mr. Sadler’s progress. Mr. Sadler declined to provide a current status of his task. On February 19, 2013, Mr. Stringham instructed Mr. Sadler to “provide all information and documentation [he had] created/compiled pursuant to [this task]” by close of business and informed him that “[f]ailure to comply with this instruction or any other instruction could result in formal disciplinary ac- tion.” J.A. 1414 ¶¶ 7, 9. Mr. Sadler responded to this in- struction by emailing Mr. Stringham and Mr. Mullendore, copying Col. Estes and others, stating that “[t]here ha[d] been no new activity on the referenced task.” J.A. 1659. On March 14, 2013, Mr. Sadler filed a first complaint with OSC alleging whistleblower retaliation. Mr. Sadler’s allegations as to what agency personnel actions were taken against him are unclear. But in his first OSC complaint, Mr. Sadler alleged that he made protected disclosures that included “[p]ossible improprieties between [Mr. String- ham] and his contract employees” and “[p]ossible [f]raud/[w]aste/[a]buse . . . [by diverting] funds for critical software safety tools . . . to [a] new computer floor[.]” J.A. 2138–39. On April 16, 2013, OSC terminated its in- quiry into Mr. Sadler’s allegations, and on June 18, 2013, Mr. Sadler appealed to the Board. On June 26, 2013, after the filing of Mr. Sadler’s first OSC complaint, Mr. Stringham proposed suspending Mr. Sadler for five days for insubordination. On August 5, 2013, Mr. Mullendore implemented the suspension, alt- hough he mitigated the penalty from five days to four, ef- fective August 12 through August 15, 2013. On August 7, 2013, Mr. Sadler received an unfavorable performance rat- ing. On August 19, 2013, Mr. Stringham sent Mr. Sadler an email asking about the status of the assigned task. Case: 23-1981 Document: 46 Page: 5 Filed: 02/25/2025

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Mr. Sadler replied that there was “[n]o change.” J.A. 1694. On August 21, 2013, Mr. Stringham proposed removing Mr. Sadler for insubordination. On August 22, 2013, in light of the proposed removal, the Board administrative judge (“AJ”) dismissed Mr. Sadler’s first Board appeal without prejudice “to allow [Mr. Sadler] to exhaust his rem- edies with OSC concerning his allegation that the Au- gust 7, 2013 suspension was retaliation for whistleblowing activity.” J.A. 20. On August 31, 2013, Mr. Sadler filed a second OSC complaint, alleging further whistleblower retaliation for the filing of his first OSC complaint and appeal; Mr. Sadler alleged the retaliation included the “four[-]day suspen- sion,” “unsatisfactory performance report,” and “proposed removal.” J.A. 2215. On September 23, 2013, the Army re- moved Mr. Sadler from his position. In October 2015, OSC informed Mr. Sadler that it had terminated its inquiry into his second OSC complaint. Thereafter, Mr. Sadler filed his second appeal with the Board; the Board apparently treated this action as reviving the first OSC complaint and addressed both complaints together. As part of his second Board appeal, the parties engaged in discovery. Mr. Sadler ultimately filed a motion for sanc- tions, alleging that the Army lost or destroyed critical evi- dence: Col. Estes’s computer files, specifically his “.pst file,” 2 which contained archived emails and documents. See J.A. 971–77. Mr. Sadler did not complain in his motion that the Army had destroyed other evidence. However, Mr. Sadler also alleged that the Army failed to identify and produce other discovery material, such as material from

2 A .pst file is an electronic storage file format that can be used to store data. The .pst format is commonly used to archive data, such as email messages, calendar in- formation, and contacts, from Microsoft programs, like Mi- crosoft Outlook. Case: 23-1981 Document: 46 Page: 6 Filed: 02/25/2025

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“Mr. Mullendore’s computer ‘backup copy’” and chat logs from a messaging service, IBM Sametime. J.A. 971–72 ¶ 2, 974 ¶ 9. In a later-filed rebuttal, Mr. Sadler clarified he “d[id] not seek sanctions pursuant to 5 C.F.R. ֻ§ 1201.74(c) for failure to comply with a discovery order” but instead “s[ought] sanctions for the loss or destruction of relevant evidence”—i.e., spoliation. Appellant’s Rebuttal to Agency’s Response to Motion for Sanctions ¶ 2, Sadler v. Dep’t of Army, MSPB No. DE-1221-16-0122-W-1; accord J.A. 2439 n.1. In subsequent supplemental memoranda, however, Mr. Sadler alleged that the Army failed to iden- tify and preserve other relevant evidence beyond Col. Es- tes’s files. For example, Mr. Sadler pointed to “the failure of anyone to backup [sic] and retain files relating to Mr. Sadler until . . . January 2015” and the “loss of a sub- stantial body of material submitted to the OSC during 2015.” J.A. 1161. The AJ denied Mr. Sadler’s motion for sanctions. The AJ explained his reasoning in his original order dated Jan- uary 20, 2017, and in his decision denying reconsideration dated September 25, 2017. The AJ limited his analysis to Col. Estes’s .pst file, finding that Mr. Sadler had dis- claimed any theory that he was requesting sanctions for failure to comply with an order compelling discovery under 5 C.F.R. § 1201.74(c). The AJ found that in 2013, Col. Es- tes created the .pst file “on his laptop hard drive (and likely on an external hard drive),” J.A. 2439, and that the file con- tained information “relevant to [Mr. Sadler’s] pending liti- gation,” J.A. 2441. The AJ further found that the Army “wiped and reimaged” the hard drive after Col. Estes left his command and that “the external hard drive was, . . . most likely, shredded.” J.A. 2439–40. However, the AJ concluded that the .pst file was lost due to “an ordinary procedure when there was a change in command” and so declined to exercise his discretion by sanctioning the Army. J.A. 2441. Mr. Sadler moved for reconsideration. Case: 23-1981 Document: 46 Page: 7 Filed: 02/25/2025

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In denying reconsideration, the AJ followed the stand- ard for the failure to preserve electronically stored infor- mation adopted in the 2015 amendments to Rule 37(e) of the Federal Rules of Civil Procedure, which requires a find- ing that “the party [that failed to preserve electronically stored information] acted with the intent to deprive an- other party of the information’s use in the litigation” in or- der to apply adverse inferences. FED. R. CIV. P. 37(e)(2). In the September 2017 decision (which included the de- nial of reconsideration of the sanctions issue), the AJ de- nied Mr. Sadler’s request for corrective action. The AJ concluded the Board lacked jurisdiction over Mr. Sadler’s first OSC complaint, concluding it did not contain a pro- tected disclosure because “a reasonable person in [Mr. Sad- ler’s] position would not believe [that the disclosures alleged in his first OSC complaint] evidenced a violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety within the mean- ing of [5 U.S.C. § 2302(b)(8)].” J.A. 32. As to Mr. Sadler’s second OSC complaint, the AJ found that Mr. Sadler had engaged in protected whistleblower ac- tivity—namely, (1) filing his first OSC complaint on March 4, 2013, and (2) appealing his first OSC complaint to the Board on June 18, 2013. The AJ also found that these protected activities were a contributing factor in the Army’s personnel actions against Mr. Sadler. The AJ then found, however, that the Army established by clear and convincing evidence that it would have taken the same ac- tions absent Mr. Sadler’s protected activities—i.e., that the Army had established independent causation. In April 2023, the full Board denied Mr. Sadler’s peti- tion for review and affirmed the AJ’s initial decision, which became the Board’s final decision. Case: 23-1981 Document: 46 Page: 8 Filed: 02/25/2025

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Mr. Sadler seeks review of the Board’s decision. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A). DISCUSSION Our review of final Board decisions is limited. We may only set aside agency actions, findings, or conclusions we find to be “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained with- out procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). We review legal questions de novo. Rumsey v. Dep’t of Just., 866 F.3d 1375, 1379 (Fed. Cir. 2017). We review the Board’s rulings on discovery issues for abuse of discretion. Kirkendall v. Dep’t of Army, 573 F.3d 1318, 1321 (Fed. Cir. 2009). I. First OSC Complaint Mr. Sadler argues the Board erred in concluding that the disclosures he identified in his first OSC complaint were not protected disclosures under 5 U.S.C. § 2302(b)(8). 3 We disagree. For the Board to have jurisdiction over Mr. Sadler’s first OSC complaint, he was required to present a nonfriv- olous allegation that he made a protected disclosure. Ca- hill v. Merit Sys. Prot. Bd., 821 F.3d 1370, 1373 (Fed. Cir. 2016). Nonfrivolous allegations are allegations that are not vague, conclusory, or facially insufficient, and that the petitioner reasonably believes to be true. Piccolo v. Merit Sys. Prot. Bd., 869 F.3d 1369, 1371 (Fed. Cir. 2017). Pro- tected disclosures include “any disclosure of information by

3 As noted earlier, it is not clear what personnel ac- tions Mr. Sadler alleged were retaliatory in the first OSC complaint, and the Board did not address this requirement in its final decision. Case: 23-1981 Document: 46 Page: 9 Filed: 02/25/2025

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an 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.” 5 U.S.C. § 2302(b)(8); see also id. § 2302(a)(2)(D) (defining “disclosure”). The Board properly found that Mr. Sadler’s allegations in his first OSC complaint were not protected disclosures within the meaning of Section 2302(b)(8) because his alle- gations were vague, conclusory, and failed to reveal circum- stances from which a disinterested person in his position could reasonably conclude that the agency’s actions evi- denced any of the violations described in that section. See Piccolo, 869 F.3d at 1371; Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999). On appeal, Mr. Sadler argues that (1) the cancellation of funding for certain software tools evidenced a “gross waste of funds”; (2) the cancellation of funding for the soft- ware tools while providing funding for a new computer room floor evidenced “gross mismanagement”; (3) his as- signment to work on the software development task evi- denced an “abuse of authority” because it resulted in personal gain for Mr. Stringham; and (4) his assignment to work on the software development task was to the detri- ment of his other employment responsibilities and thus ev- idenced “a substantial and specific danger to public health or safety.” See Pet’r’s Br. 51–63. As the Board found, the problem common to each of these arguments is that Mr. Sadler failed to allege the substantive details required to establish jurisdiction. See Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1036 (Fed. Cir. 1993); ElHelbawy v. Dep’t of Com., No. 2023-1322, 2023 WL 8494706, at *3 (Fed. Cir. Dec. 8, 2023) (nonprecedential) (per curiam). Mr. Sadler also argues that the Board “failed to con- sider whether [his] disclosures constituted a disclosure of violations of law, rules or regulation.” Pet’r’s Br. 43. We Case: 23-1981 Document: 46 Page: 10 Filed: 02/25/2025

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disagree. He argues that his assignment to develop a soft- ware testing program “violat[ed] the DoD directives which created [his] position,” forcing him to abandon tasks iden- tified in his original position description in violation of var- ious government policy bulletins. Id. at 44–45. These arguments are likewise without merit. Mr. Sadler has not shown a colorable violation of any law, rule, or regulation. 4 Accordingly, we conclude the Board did not err in find- ing that Mr. Sadler failed to nonfrivolously allege in his first OSC complaint that he engaged in activity protected by 5 U.S.C. § 2302(b)(8). II. Second OSC Complaint We now turn to the Board’s determination that the agency demonstrated by clear and convincing evidence that it would have taken the same actions against Mr. Sadler absent his protected whistleblowing activity (i.e., filing his first OSC complaint and then appealing his first OSC com- plaint to the Board). See J.A. 38–39; 5 U.S.C. § 1221(e)(2).

4 To the extent Mr. Sadler now argues that his re- fusal to complete his assigned tasking was protected activ- ity under Section 2302(b)(9)(D), which protects an individual who “refus[ed] to obey an order that would re- quire the individual to violate a law, rule, or regulation,” he did not raise these arguments to the Board and they are forfeited. See, e.g., Sistek v. Dep’t of Veterans Affs., 955 F.3d 948, 953 n.1 (Fed. Cir. 2020) (finding argument forfeited for failure to present it to AJ in the first instance). Mr. Sadler additionally argues that he “reasonably be- lieved that [Mr.] Stringham’s actions concerning the use of the contractors violated the [Federal Acquisition Regula- tions].” Pet’r’s Br. 48. Mr. Sadler concedes that he did not raise this argument to the Board. See Pet’r’s Reply Br. 22. We decline to consider it in the first instance. See, e.g., Sis- tek, 955 F.3d at 953 n.1. Case: 23-1981 Document: 46 Page: 11 Filed: 02/25/2025

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In this context, we apply three factors set forth in Carr v. Social Security Administration, 185 F.3d 1318, 1322 (Fed. Cir. 1999). The three Carr factors are: 1) the strength of the [Army’s] evidence in support of its action, 2) the existence and strength of any motive to retaliate on the part of the [Army] offi- cials who participated in the decision, and 3) any evidence that the [Army] takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated. McIntosh v. Dep’t of Def., 53 F.4th 630, 645 (Fed. Cir. 2022) (citing Carr, 185 F.3d at 1323). Mr. Sadler disputes the Board’s finding only as to the first and second Carr factors. As to the first Carr factor, the Board considered the Army’s “straightforward and largely uncontroverted” evi- dence that Mr. Sadler was insubordinate and determined that “the evidence strongly supports the [Army’s] actions in imposing discipline for insubordination in the form of suspension and later removal.” J.A. 39–41. Regarding sus- pension, the Board’s conclusion is supported at least by the following undisputed facts: (1) Mr. Sadler refused to pro- vide status updates on his assigned task to his supervisor Mr. Stringham; (2) Mr. Stringham warned Mr. Sadler that failure to comply with instructions “could result in formal disciplinary action,” J.A. 1414 ¶ 9; (3) Mr. Stringham then gave Mr. Sadler instructions to complete the assigned task and assigned expected due dates; and (4) Mr. Sadler failed to comply with those instructions or meet those expected due dates. Regarding removal, after returning from his suspension, Mr. Sadler continued to fail to comply with previous instructions to make progress on his assigned task. See J.A. 1694 (email from Mr. Sadler indicating there was “[n]o change” in the status of the assigned task). Based on this record, we conclude that substantial evidence sup- ports the Board’s finding in favor of the Army as to the first Carr factor. Case: 23-1981 Document: 46 Page: 12 Filed: 02/25/2025

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Mr. Sadler also argues that his actions could not con- stitute insubordination because the Army failed to respond to Mr. Sadler’s complaints about his assigned tasks. Our precedent establishes no such principle. While complaints may constitute protected whistleblowing, Mr. Sadler’s complaints here do not excuse his failure to perform his as- signed tasks. See n. 4 supra. Mr. Sadler argues his suspension and removal consti- tuted impermissible double punishment for the same mis- conduct. See Nguyen v. Dep’t of Homeland Sec., 737 F.3d 711, 716–17 (Fed. Cir. 2013) (explaining the Board has pro- hibited double punishment in cases where an agency im- posed two separate instances of discipline for the same act of misconduct). His arguments are unavailing. The Army’s second adverse action (removal) was not based on the same incident of refusing to comply with instructions as the first adverse action (suspension). Instead, the second adverse action was based on Mr. Sadler’s continued refusal to com- ply with his ongoing instructions to complete the assigned task. We see no error in the Board’s analysis of the first Carr factor. As to the second Carr factor, the Board found it weighed in favor of the Army because there was “little evi- dence that the [Army] retaliated against [Mr. Sadler] for protected activity.” J.A. 41. This determination is likewise supported by substantial evidence. The Board found Mr. Sadler engaged in the protected activity of (1) filing a first complaint with OSC on March 4, 2013, and (2) appeal- ing his first OSC complaint to the Board on June 18, 2013. J.A. 33. As the Board explained, Mr. Sadler’s supervisors discussed Mr. Sadler’s insubordination in February 2013, i.e., before he engaged in any protected activity. The Board reviewed the timing of the Army’s actions as compared to the protected activity and concluded there was no evidence to suggest Mr. Sadler’s supervisors were aware of the pro- tected activity until after they began formal discussions about suspending him. The Board also found credible Case: 23-1981 Document: 46 Page: 13 Filed: 02/25/2025

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testimony that Mr. Stringham and Mr. Mullendore did not factor Mr. Sadler’s first Board appeal into the decision to suspend or remove Mr. Sadler. Based on this record, sub- stantial evidence supports the Board’s conclusion that the second Carr factor weighed in favor of the Army. And to the extent Mr. Sadler asks us to review the credibility de- terminations, we see no basis to set them aside. See Bieber v. Dep’t of Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002) (“The credibility determinations of an administrative judge are virtually unreviewable on appeal.”). We conclude substantial evidence supports the Board’s determination that the Army met its burden to show inde- pendent causation. III. Sanctions for Spoliation Mr. Sadler finally argues the Board abused its discre- tion in declining to draw adverse inferences against the Army due to the destruction of Col. Estes’s .pst file (spolia- tion). 5 The term “spoliation” encompasses destruction of

5 On appeal, Mr. Sadler accuses the Board of “limit[ing] its decision to Col. Estes’s .pst files and . . . not address[ing] other matters [Mr.] Sadler raised [in his mo- tion for sanctions].” Pet’r’s Br. 22. It is unclear to which “other matters” Mr. Sadler refers. To the extent Mr. Sad- ler is referring to the Army’s failure to produce, or explain why it did not produce, certain documents in violation of the Board’s order granting his motion to compel, Mr. Sad- ler expressly stated to the Board that he “d[id] not seek sanctions pursuant to 5 C.F.R. ֻ§ 1201.74(c) for failure to comply with a discovery order.” Appellant’s Rebuttal to Agency’s Response to Motion for Sanctions ¶ 2, Sadler v. Dep’t of Army, MSPB No. DE-1221-16-0122-W-1. In his motion for sanctions, the only information Mr. Sadler com- plained was destroyed by the Army was Col. Estes’s files. Case: 23-1981 Document: 46 Page: 14 Filed: 02/25/2025

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evidence and failure to preserve evidence. See, e.g., 22 Charles Alan Wright & Kenneth W. Graham, Federal Practice and Procedure: Evidence § 5178.2 (2d ed.). The Board’s statutes and regulations do not address spoliation of evidence or sanctions for spoliation, but the regulations provide that an administrative judge “may im- pose sanctions upon the parties as necessary to serve the ends of justice.” 5 C.F.R. § 1201.43; see id. § 1201.41. The Board considers the Federal Rules of Civil Procedure “a general guide for discovery practice[].” Id. § 1201.72(a). “Procedural matters relative to discovery and evidentiary issues fall within the sound discretion of the [B]oard and its officials.” Higgins v. Dep’t of Veterans Affs., 955 F.3d 1347, 1356 (Fed. Cir. 2020) (quoting Curtin v. Off. of Pers. Mgmt., 846 F.2d 1373, 1378 (Fed. Cir. 1988)). The parties do not appear to dispute the Board’s find- ings that the Army had an obligation to preserve the hard drive containing Col. Estes’s .pst file; that the information contained in Col. Estes’s .pst file was relevant to Mr. Sad- ler’s case; and that the Army failed to preserve the .pst file because the Army wiped and reimaged the hard drive. The parties instead dispute what state of mind can serve as the basis for imposing an adverse inference sanction for the de- struction of relevant evidence and whether the Board ap- propriately applied the correct standard. In denying Mr. Sadler’s motion for reconsideration, the Board “decline[d] to exercise [its] discretion to draw an

We see no error in the AJ’s decision to decline to address arguments raised for the first time in Mr. Sadler’s later- filed second supplemental memorandum on the sanctions issue as to other files. To the extent that the AJ did not address the destruction of any of Col. Estes’s files other than the .pst files, that failure was harmless because the same rationale would apply. Case: 23-1981 Document: 46 Page: 15 Filed: 02/25/2025

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adverse inference against the [Army] or impose other sanc- tions for spoliation” and found unpersuasive Mr. Sadler’s argument that “per se negligence” was sufficient to warrant sanctions for spoliation. J.A. 22 (internal citation omitted). A Mr. Sadler contends that the Board erred in not apply- ing the negligence standard recognized in our decision in Kirkendall and instead applying the intent standard of Rule 37(e) of the Federal Rules of Civil Procedure. We are unpersuaded by Mr. Sadler’s argument that the Board failed to follow our decision in Kirkendall. In Kirkendall, the Board rejected the petitioner’s motion for sanctions for destruction of evidence, noting only that an adverse inference was “unwarranted under the circum- stances.” 573 F.3d at 1326. We concluded that, under the Board’s precedent in Natividad v. Dep’t of Agric., 5 M.S.P.R. 415 (M.S.P.B. 1981), negligent destruction of evidence can result in an adverse inference sanction. Kirkendall, 573 F.3d at 1327 (citing Natividad, 5 M.S.P.R. at 418). We vacated the Board’s decision and remanded be- cause the Board, without explanation and in conflict with its precedent, applied a stricter standard than negligence. Id. We did not hold that negligence was the correct stand- ard. See id. Even at the time of Kirkendall, there was a split in the circuits as to the requisite state of mind for a court to apply an adverse inference for destruction of evidence. Some cir- cuits held that the party seeking an adverse inference for destruction of evidence was required to establish that the evidence was destroyed “with a culpable state of mind,” which can be “satisfied by a showing that the evidence was destroyed ‘knowingly . . . or negligently,’” or on a finding of gross negligence. Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d Cir. 2002) (quoting Byrnie v. Town of Cromwell, 243 F.3d 93, 109 (2d Cir. 2001) (em- phasis added)); see also United States v. Rose, 590 F.2d Case: 23-1981 Document: 46 Page: 16 Filed: 02/25/2025

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232, 237 (7th Cir. 1978); United States v. Miranda, 526 F.2d 1319, 1325–28 (2d Cir. 1975). The Board in Na- tividad relied on the circuit precedent in Rose and Mi- randa. See Natividad, 5 M.S.P.R. at 428 (first citing Rose, 590 F.2d at 237; and then citing Miranda, 526 F.2d at 1325–28). Other courts had held that “[m]ere negligence in losing or destroying records is not enough”—“[t]he ad- verse inference must be predicated on the bad faith of the party destroying the records.” Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997) (emphasis added); see also Condrey v. SunTrust Bank of Ga., 431 F.3d 191, 203 (5th Cir. 2005) (explaining that “an adverse inference against the destroyer of evidence [is permitted] only upon a showing of ‘bad faith’ or ‘bad conduct.’” (emphases added) (quoting King v. Ill. Cent. R.R., 337 F.3d 550, 556 (5th Cir. 2003)). Our own law acknowledged the “culpable state of mind” standard without deciding whether negligence was sufficient to meet that standard. See Jandreau v. Nichol- son, 492 F.3d 1372, 1375–76 (Fed. Cir. 2007) (citing Resi- dential Funding, 306 F.3d at 107). The 2015 amendments to Rule 37(e) resolved this split as to the failure to preserve electronically stored information and developed an “intent to deprive” standard for such cases. It is unclear what the standard under the Federal Rules is for spoliation of other types of evidence. Under amended Rule 37(e), a court may impose an ad- verse inference sanction for failure to preserve electroni- cally stored information “only upon finding that the party acted with the intent to deprive another party of the infor- mation’s use in the litigation.” 6 The commentary to the

6 Rule 37(e) states: (e) Failure to Preserve Electronically Stored Infor- mation. If electronically stored information that should have been preserved in the anticipation or Case: 23-1981 Document: 46 Page: 17 Filed: 02/25/2025

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2015 amendments notes that new Rule 37(e)(2) expressly “rejects cases such as [Residential Funding, 306 F.3d 99] that authorize the giving of adverse-inference instructions on a finding of negligence or gross negligence.” FED. R. CIV. P. 37, Committee Notes on Rules—2015 Amendment. We need not decide whether the Board is bound to fol- low the intent standard reflected in the 2015 amendments to Rule 37(e), but we conclude the Board did not abuse its discretion or act arbitrarily and capriciously by choosing to follow the new standard in Rule 37(e). Though the Rules are not controlling, the Board’s regulations specifically pro- vide that they are “instructive.” 5 C.F.R. § 1201.72. It is thus appropriate for the Board to follow the instructive guidance of Rule 37 instead of earlier possibly relevant Board precedent approving a negligence standard (though that precedent did not directly address the special prob- lems presented by electronically stored information). And in contrast to Kirkendall where the Board provided “no

conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discov- ery, the court: . . . (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: (A) presume that the lost infor- mation was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a de- fault judgment. Case: 23-1981 Document: 46 Page: 18 Filed: 02/25/2025

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explanation” for denying the request for sanctions, 573 F.3d at 1326, here, the Board explained the rationale behind its decision. See J.A. 21–23. B Mr. Sadler additionally argues the Board erred in rely- ing on the 2015 amendments to Rule 37 because those amendments became effective on December 1, 2015, after the Army destroyed Col. Estes’s .pst file between 2013 and early 2015. We disagree. The Board is not bound by Rule 37(e), but it reasonably looked to the Rule for guid- ance. In any event, it is not necessary for the amended Rule to have been in effect when the conduct occurred. When the Supreme Court amended the Rules in 2015, it provided “[t]hat the foregoing amendments . . . shall take effect on December 1, 2015, and shall govern in all proceed- ings thereafter commenced and, insofar as just and practi- cable, all proceedings then pending.” SUPREME COURT OF THE UNITED STATES, ORDER REGARDING AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE (2015). Mr. Sad- ler’s proceeding was pending when the amendments took effect. Mr. Sadler filed his motion for sanctions on Novem- ber 16, 2016, well after the amendments took effect. C The Board also did not err in applying the standard to the facts of this case. In denying Mr. Sadler’s motion for sanctions, the AJ first explained that destroying evidence as part of a regular business practice tends to weaken the inference that evidence was destroyed knowingly or negli- gently. See J.A. 2440–41 (citing Beaven v. U.S. Dep’t of Just., 622 F.3d 540, 554 (6th Cir. 2010)); see also Diaz v. Dep’t of the Treasury, 656 F. App’x 1000, 1002 (Fed. Cir. 2016) (nonprecedential) (finding the Board did not abuse its discretion in affirming AJ’s decision not to draw adverse inferences where petitioner failed to timely request the de- stroyed evidence and the evidence was destroyed in the or- dinary course of business). Here, the hard drive containing Case: 23-1981 Document: 46 Page: 19 Filed: 02/25/2025

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Col. Estes’s .pst file was destroyed as part of the Army’s ordinary procedures. Under such circumstances, we see no error in the Board denying Mr. Sadler’s request for sanc- tions under the higher intent standard of Rule 37(e). In sum, the Board’s decision was in accordance with law and was not arbitrary and capricious. CONCLUSION We have considered Mr. Sadler’s remaining arguments and find them unpersuasive. For the foregoing reasons, we affirm the Board’s decision. AFFIRMED COSTS No costs.