Case: 22-1487 Document: 62 Page: 1 Filed: 02/09/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MICHELLE A. FERRELL,
Petitioner
v.
DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT,
Respondent
______________________
2022-1487
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-1221-21-0228-W-1.
______________________
Decided: February 9, 2023
______________________
MICHELLE FERRELL, N. Richland Hills, TX, pro se.
AUGUSTUS JEFFREY GOLDEN, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, CORINNE
ANNE NIOSI.
______________________
Case: 22-1487 Document: 62 Page: 2 Filed: 02/09/2023
2 FERRELL v. HUD
Before MOORE, Chief Judge, CLEVENGER and DYK, Circuit
Judges.
PER CURIAM.
Michelle A. Ferrell seeks review of the final decision of
the Merit Systems Protection Board (Board or MSPB)
denying her request for corrective action under the Whis-
tleblower Protection Act of 1989 (WPA) and the Whistle-
blower Protection Enhancement Act of 2012 (WPEA).
Ferrell v. Dep’t of Hous. & Urb. Dev., No. DA-1221-21-0228-
W-1,
2021 WL 6107603 (M.S.P.B. Dec. 20, 2021) (Board De-
cision) (SAppx. 7-50). 1 For the reasons set forth below, we
affirm the Board’s final decision.
BACKGROUND
Ms. Ferrell was employed as an Equal Opportunity
Specialist by the Department of Housing and Urban Devel-
opment (HUD) in the Intake Branch of its Office of Fair
Housing and Equal Opportunity Region 6 office in Fort
Worth, Texas. SAppx. 8. Ms. Ferrell’s job required her to
receive and process complaints made from individuals who
claimed their housing rights were violated.
Id. She had
approximately eighteen years of service when she retired
from HUD on January 31, 2020.
Id.
In approximately May 2019, Kimone Paley joined
HUD, becoming Ms. Ferrell’s first-line supervisor, and re-
mained as such until Ms. Ferrell’s retirement. SAppx. 8-9.
There was immediate friction between Ms. Paley and Ms.
Ferrell. SAppx. 9. During Ms. Paley’s first day, at an all-
1 “SAppx.” citations herein refer to the appendix
filed concurrently with Respondent’s brief. Additionally,
because the reported version of the Board’s decision is not
paginated, citations herein are to the version of the Board
decision included in the appendix—e.g., Board Decision at
1 can be found at SAppx. 7.
Case: 22-1487 Document: 62 Page: 3 Filed: 02/09/2023
FERRELL v. HUD 3
hands meeting to introduce Ms. Paley, Ms. Ferrell stated
she had been passed over for Ms. Paley’s position.
Id.
Later that day, Ms. Paley testified that Ms. Ferrell “ac-
costed” her by physically directing her into a private con-
ference room where Ms. Ferrell stated Ms. Paley had taken
her job, and Ms. Paley should not be offended when Ms.
Ferrell filed an Equal Employment Opportunity (EEO)
complaint against her.
Id.
Moreover, Ms. Paley testified she observed problematic
conduct by Ms. Ferrell soon after Ms. Paley joined HUD.
SAppx. 10. This included Ms. Ferrell (1) falsifying dates on
documents to make it appear she met deadlines for the
completion of work; (2) purposefully refusing to comply
with instructions on how to submit work in an appropriate
format; (3) falsely claiming not to know how to operate Mi-
crosoft Word (Word); (4) placing restrictions on Word docu-
ments submitted for review by Ms. Paley so they could not
be edited, a multi-step process that could not have been
done unintentionally; (5) refusing to complete assigned
work; (6) refusing to follow Ms. Paley’s instructions to
make corrections to her work; and (7) spreading unsub-
stantiated office gossip to new employees. SAppx. 10, 40.
In its final decision, the Board described Ms. Ferrell’s con-
duct as “confrontational, aggressive, and disrespectful.”
SAppx. 40.
In response, Ms. Paley took personnel actions against
Ms. Ferrell, starting with an oral admonishment, then is-
suing a letter of reprimand, and, finally, issuing a fourteen-
day suspension.
Id. Ms. Ferrell retired soon after return-
ing from her suspension. SAppx. 8.
Eight months after her retirement, on September 30,
2020, Ms. Ferrell filed a combined Whistleblower and Pro-
hibited Personnel Practice complaint with the Office of
Special Counsel (OSC). SAppx. 12, 60-64. In February
2021, OSC notified Ms. Ferrell it ended its inquiry, and she
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4 FERRELL v. HUD
had the right to file an Individual Right of Action (IRA)
with the Board, which she did. SAppx. 58-59, 15.
Ms. Ferrell’s complaint alleged that HUD took adverse
personnel actions against her in retaliation for protected
whistleblowing activity and one protected activity. She re-
cited four purported disclosures of whistleblowing activity
protected under the WPA and WPEA by disclosing (1) an
inappropriate relationship between two co-workers to a su-
pervisor; (2) an improper hiring to her supervisor, HUD’s
Inspector General (IG) and OSC, and HUD’s Assistant Sec-
retary; (3) the improper alteration of a personnel form re-
lated to a co-worker’s promotion potential to OSC; and (4)
the improper selection of her new supervisor to OSC.
SAppx. 15. She also alleged that her anonymous complaint
to HUD’s Office of the IG was protected activity. SAppx.
15-16.
The administrative judge assigned to Ms. Ferrell’s ap-
peal suspended the case proceedings in June 2021 for
thirty days pursuant to
5 C.F.R. § 1201.28, which permits
an administrative judge to make two such suspensions. 2
SAppx. 125. Although the administrative judge originally
scheduled the hearing for late August, it had to be can-
celled and rescheduled due to the administrative judge
having an unavoidable emergency. SAppx. 127-30, 144.
Following the hearing cancellation, Ms. Ferrell filed a mo-
tion, which took issue with the administrative judge’s rul-
ings on evidence and witnesses throughout the appeal and
requested her appeal be moved to a different administra-
tive judge in a different region. SAppx. 149-53. The ad-
ministrative judge denied Ms. Ferrell’s venue transfer
2
5 C.F.R. § 1201.28(a) provides: “The [administra-
tive] judge may issue an order suspending the processing
of an appeal for up to 30 days. The judge may grant a sec-
ond order suspending the processing of an appeal for up to
an additional 30 days.”
Case: 22-1487 Document: 62 Page: 5 Filed: 02/09/2023
FERRELL v. HUD 5
request since MSPB rules do not allow cases to be trans-
ferred to a different venue. SAppx. 162. The administra-
tive judge also denied Ms. Ferrell’s request for a new
administrative judge because she failed to make a substan-
tial showing of bias, which is required to disqualify a judge.
SAppx. 162-65. Further, in denying Ms. Ferrell’s request
for a new administration judge, the order expressly noted
Ms. Ferrell had the right to seek an interlocutory appeal of
that decision. SAppx. 165.
The hearing was rescheduled for early October, when
Ms. Ferrell was given the opportunity to present her wit-
nesses and evidence. SAppx. 186-90. In early November,
the administrative judge issued a second order suspending
case proceedings for thirty days pursuant to
5 C.F.R.
§ 1201.28. SAppx. 191. Consequently, Ms. Ferrell filed
three documents in response variously objecting to (1) the
second suspension, (2) the procedures of the October hear-
ing, (3) the rulings by the administrative judge regarding
witnesses and documents, (4) the perceived technical and
procedural errors during the October hearing, (5) the al-
leged bias by the administrative judge, and (6) the per-
ceived unfairness in the appeal process. SAppx. 193-236.
Regarding the second suspension in November, Ms. Ferrell
argued—as she does in this appeal—that the cancellation
of the August hearing constituted a suspension, making
the November suspension the third suspension, even
though
5 C.F.R. § 1201.28 only allows for two suspensions. 3
3 Ms. Ferrell also contends there was a fourth case
suspension since the administrative judge delivered the in-
itial decision on December 20, 2021, which was eighteen
days after the conclusion of the November suspension on
December 2, 2021. Informal Reply Br. 2 [ECF No. 54]. Ms.
Ferrell does not point to any support for the contention that
an initial decision must issue immediately after a case sus-
pension. She also does not identify any evidence that all
Case: 22-1487 Document: 62 Page: 6 Filed: 02/09/2023
6 FERRELL v. HUD
The administrative judge issued the Board’s initial de-
cision on December 20, 2021, concluding that Ms. Ferrell
failed to prove she was entitled to whistleblower protec-
tions for the disclosures she identified, and that the claim
related to her anonymous complaint lacked merit. SAppx.
7-50. Thus, she was not entitled to her request for correc-
tive action, and the Board denied her appeal.
Id. The
Board’s initial decision became its final decision on Janu-
ary 24, 2022. SAppx. 42-43.
Ms. Ferrell timely filed a petition for review in this
court. We have jurisdiction pursuant to
28 U.S.C.
§ 1295(a)(9).
DISCUSSION
Our authority to review a final Board decision is lim-
ited by law. We may not set aside a final Board decision
unless we determine it is “(1) arbitrary, capricious, an
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); see also Bridge-
stone/Firestone Rsch., Inc. v. Auto. Club de l’Ouest de la
France,
245 F.3d 1359, 1361 (Fed. Cir. 2001). Substantial
evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Consol.
Edison Co. of New York v. Nat’l Lab. Rels. Bd.,
305 U.S.
197, 229 (1938). “[W]here two different, inconsistent con-
clusions may reasonably be drawn from the evidence in rec-
ord, an agency’s decision to favor one conclusion over the
other is the epitome of a decision that must be sustained
upon review for substantial evidence.” In re Jolley,
308
F.3d 1317, 1329 (Fed. Cir. 2002).
activity in her case was suspended between December 2
and 20, 2021, rather than being ordinarily processed.
Case: 22-1487 Document: 62 Page: 7 Filed: 02/09/2023
FERRELL v. HUD 7
Substantial evidence supports the Board’s conclusions
that Ms. Ferrell’s disclosures were not protected disclo-
sures and her other protected activity was not a contrib-
uting factor in any personnel action.
A protected disclosure under the WPA and WPEA is a
disclosure of information that the individual reasonably be-
lieves evidences a violation of law, rule, or regulation, gross
mismanagement, gross waste of funds, abuse of authority,
or substantial and specific danger to public health or
safety.
5 C.F.R. § 1209.4(b). The test to determine whether
a putative whistleblower has a reasonable belief is an ob-
jective one: could a disinterested observer with knowledge
of the essential facts known to and readily ascertainable by
the employee reasonably conclude that the actions of the
government evidence one of the categories of wrongdoing
protected by the WPA and WPEA. Lachance v. White,
174
F.3d 1378, 1381 (Fed. Cir. 1999). The reasonableness of
the disclosure is based upon what the employee knew at
the time of the disclosure, not whether later information
may have established the reasonableness of an earlier dis-
closure. Reardon v. Dep’t of Homeland Sec.,
384 F. App’x
992, 994 (Fed. Cir. 2010). In the event there is a protected
disclosure, the inquiry moves to whether the protected ac-
tivity was a contributing factor in the challenged personnel
action.
5 C.F.R. § 1209.4(d).
First, substantial evidence supports the Board’s con-
clusion that Ms. Ferrell failed to establish she reasonably
believed she was reporting wrongdoing covered by the
whistleblower statues with respect to an alleged relation-
ship between coworkers because Ms. Ferrell did not estab-
lish she reasonably believed they were in said relationship
and, further, failed to establish she reasonably believed
said relationship violated agency policy, rule, or regulation,
or that it violated government ethics regulations. The
Board found there was no evidence to support Ms. Ferrell’s
claim the two coworkers were living at the same address at
the time she made the disclosure and, even if there was
Case: 22-1487 Document: 62 Page: 8 Filed: 02/09/2023
8 FERRELL v. HUD
such evidence, cohabitation alone does not imply an im-
proper relationship. SAppx. 19. All evidence Ms. Ferrell
presented to support her belief the two coworkers were co-
habitating was obtained years after her disclosure. SAppx.
19. As a result, the evidence could not support her belief
the two coworkers were in an inappropriate relationship at
the time she made the disclosure. Instead, the evidence
showed Ms. Ferrell’s belief was based on unsubstantiated
office rumors, which are not sufficient to form a reasonable
belief. SAppx. 20. Further, because a reasonable person
would not have believed that the alleged relationship vio-
lated any government policy, the evidence showed that Ms.
Ferrell did not have a reasonable belief that she was re-
porting wrongdoing. SAppx. 22-28.
Second, substantial evidence supports the Board’s con-
clusion that Ms. Ferrell’s disclosure of an improper hiring
was not protected whistleblower activity because a reason-
able person would have known no wrongdoing occurred.
Ms. Ferrell’s belief that the candidate in question was not
eligible for the program under which they were hired was
incorrect. SAppx. 28-29. The evidence showed a reasona-
ble person would have simply checked the eligibility re-
quirements and discovered the candidate was in fact
eligible and, thus, known there was no wrongdoing.
SAppx. 29. Further, Ms. Ferrell’s allegations as to the can-
didate receiving preferential treatment were baseless,
without factual support, and contradicted by reliable testi-
mony and record evidence. SAppx. 29-30.
Third, substantial evidence supports the Board finding
that Ms. Ferrell’s disclosure of the improper alteration of a
personnel form related to a co-worker’s promotion potential
was not entitled to whistleblower protection because a rea-
sonable person would not have believed wrongdoing oc-
curred. Ms. Ferrell did not provide any evidence the error
on the personnel form was anything more than a genuine
mistake. SAppx. 31-33. There was no evidence to support
a motive to make the error on the form, no evidence the
Case: 22-1487 Document: 62 Page: 9 Filed: 02/09/2023
FERRELL v. HUD 9
person accused of making the improper alteration had the
ability to make the alteration, and no evidence the error
led to any improper benefit.
Id. In fact, the evidence pre-
sented on this issue “erode[d] any reasonable belief that
any illegal or improper reason caused the error[.]” SAppx.
33.
Fourth, substantial evidence also supports the Board
finding that Ms. Ferrell’s disclosure concerning the im-
proper selection of her new supervisor to OSC was not en-
titled to protection under the whistleblowing statutes
because, again, there was no evidence to support a reason-
able person’s conclusion wrongdoing occurred. Ms. Ferrell
did not present evidence to explain, at the time she made
the disclosure, what facts led her to conclude she was re-
porting agency wrongdoing.
Id. All evidence Ms. Ferrell
presented to support the claim she learned after the disclo-
sure, meaning it could not have supported Ms. Ferrell’s be-
lief at the time of the disclosure. SAppx. 33-34. The Board
concluded Ms. Ferrell’s belief there was wrongdoing was
based solely on Ms. Ferrell’s application and non-selection
for the same position, which is insufficient for the disclo-
sure to get whistleblower protection. SAppx. 34.
Although the Board did find Ms. Ferrell’s anonymous
complaint to HUD’s Office of the IG in 2019 was protected
activity under
5 U.S.C. § 2302(b)(9)(C), substantial evi-
dence supports the conclusion that this could not have been
a contributing factor in any personnel action. There was
no evidence anyone alleged to be responsible for any per-
sonnel action was aware that Ms. Ferrell was the source of
the anonymous complaint. SAppx. 36-37. Starting with
Ms. Ferrell’s non-selection for the supervisory position, the
anonymous complaint was not made until after the selec-
tion panel made its decision. SAppx. 37-38. Therefore, it
would have been impossible for anyone on the panel to have
taken retaliatory actions regarding that personnel action
based on the anonymous complaint.
Id.
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10 FERRELL v. HUD
Moving to HUD’s disciplinary actions against Ms. Fer-
rell, there was extensive credible evidence to support these
personnel actions. SAppx. 37. The disciplinary actions
were supported by testimony as to Ms. Ferrell’s resistance
to constructive criticism, her prior violation of her roles and
responsibilities, falsifying dates on documents to make it
appear she met deadlines for the completion of work, pur-
posefully refusing to comply with instructions on how to
submit work in an appropriate format, falsely claiming not
to know how to operate Word, placing restrictions on Word
documents submitted for review by Ms. Paley so they could
not be edited, a multi-step process that could not have been
done unintentionally, refusing to complete assigned work,
refusing to follow Ms. Paley’s instructions to make correc-
tions to her work, and spreading unsubstantiated office
gossip to new employees. SAppx. 10, 38-40. Thus, substan-
tial evidence supports the Board finding HUD had valid
reasons for taking disciplinary actions and the facts were
not so lacking to infer any retaliatory intent. SAppx. 41.
In addition to her protected disclosure allegations, Ms.
Ferrell points to several other matters as proof that the
Board’s final decision was “obtained without procedures re-
quired by law, rule, or regulation having been followed.”
5 U.S.C.§ 7703(c).
Ms. Ferrell argues the Board’s decision warrants rever-
sal because (1) the administrative judge suspended the
case more than two times in violation of
5 C.F.R. § 1201.28,
which allows for only two suspensions; (2) there was judi-
cial bias against her as a pro se litigant; (3) she did not re-
ceive copies of the hearing recording on CD and hearing
transcript from the administrative judge; and (4) there are
issues regarding her claims of retaliation for her prior EEO
complaints, union activity, and discrimination based upon
race, sex, and disability.
First, the administrative judge only suspended the case
two times: first in June 2021 and second in early November
Case: 22-1487 Document: 62 Page: 11 Filed: 02/09/2023
FERRELL v. HUD 11
2021. SAppx. 125, 191. The cancellation of the August
hearing and the eighteen days in December 2021 were not
suspensions under
5 C.F.R. § 1201.28(a). Further, in an
IRA appeal before the Board, there is no statutory require-
ment the appeal be concluded by a particular deadline.
5 U.S.C. § 7701(i)(4);
5 C.F.R. § 1201.11.
Second, there is no evidence of judicial bias or that the
administrative judge did not interpret Ms. Ferrell’s argu-
ments in the most favorable light. While an administrative
judge should interpret a pro se litigant’s arguments liber-
ally, a litigant’s pro se status does not excuse the ultimate
failure of their case. See Durr v. Nicholson,
400 F.3d 1375,
1380 (Fed. Cir. 2005). The record reflects the administra-
tive judge in this case followed the recommendations of the
MSPB’s Judges’ Handbook, was patient when handling Ms.
Ferrell’s filings that needed correction, provided Ms. Fer-
rell full opportunity to question witnesses for over nine
hours during two hearing days, and produced a comprehen-
sive thirty-six-page opinion that thoroughly examined the
evidence Ms. Ferrell presented. Moreover, Ms. Ferrell
waived any request related to disqualifying the adminis-
trative judge by not filing an interlocutory appeal following
denial of her motion. See
5 C.F.R. § 1201.42(c).
Third, Ms. Ferrell received all that she was entitled to
regarding hearing recordings and transcripts. “Copies of
recordings or existing transcripts will be provided upon re-
quest to parties free of charge.”
5 C.F.R. § 1201.53(c) (em-
phasis added). Audio recordings are already in Tabs 59
and 60 in her MSPB appeal file, which she can access
online. SAppx. 6. If Ms. Ferrell wanted to have a CD made
of the hearing recording, her request should go to the
MSPB Office of the Clerk of the Board, not the administra-
tive judge. See SAppx. 308-09. Regarding transcripts,
“[a]ny party may request that the court reporter prepare a
full or partial transcript, at the requesting party’s expense.
Judges do not prepare transcripts.” § 1201.53(b) (emphasis
added). Hearing transcripts are not automatically created
Case: 22-1487 Document: 62 Page: 12 Filed: 02/09/2023
12 FERRELL v. HUD
during the MSPB appeal process. They are not already “ex-
isting,” meaning Ms. Ferrell is not entitled to a copy of
them free of charge. If Ms. Ferrell would like hearing tran-
scripts, she must pay for them as the law requires. Fur-
ther, the administrative judge is not the appropriate party
to contact for this request. See SAppx. 309-12. If Ms. Fer-
rell wants hearing transcripts, she must contact the Office
of Regional Operations’ Supervisory Paralegal. Id.
Finally, Ms. Ferrell attempts to litigate claims of retal-
iation for her prior EEO complaints, union activity, and
discrimination based upon race, sex, and disability. How-
ever, allegations of retaliation for exercising a Title VII
right do not fall within the scope of the WPA or WPEA and
are not the proper subject for inclusion in an IRA appeal.
Young v. Merit Sys. Prot. Bd.,
961 F.3d 1323, 1329 (Fed.
Cir. 2020). Thus, these claims are outside the Board’s IRA
jurisdiction, and, consequently, outside of our jurisdiction
on this appeal. See SAppx. 41-42.
CONCLUSION
After careful review of Ms. Ferrell’s briefs on appeal,
the record of the proceedings before the Board, and all Ms.
Ferrell’s arguments, we are unable to discern any material
error of fact or law, or abuse of discretion in the Board’s
decision. We therefore affirm the Board’s final decision.
AFFIRMED
COSTS
No costs.
