Timothy Mohler v. Department of Homeland Security ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY MOHLER, DOCKET NUMBER
Appellant, CH-1221-18-0119-B-1
v.
DEPARTMENT OF HOMELAND DATE: May 2, 2024
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Timothy Mohler , Harrison Township, Michigan, pro se.
Karen R. Hiyama , Detroit, Michigan, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the remand initial decision,
which denied his request for corrective action in this individual right of action
(IRA) appeal. On petition for review, he disagrees with the administrative
judge’s finding that the agency proved by clear and convincing evidence that it
would have taken the same personnel actions absent his protected disclosure;
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
argues that the administrative judge abused her discretion by denying his motion
to compel and that the administrative judge who adjudicated the underlying
appeal was biased against him; raises new personnel actions; and asserts that he
engaged in a protected activity under 5 U.S.C. § 2302(b)(9)(C). Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
The administrative judge properly analyzed Carr factors 1 and 2.
In determining whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of
whistleblowing, the Board will consider all the relevant factors, including the
following: (1) the strength of the agency’s evidence in support of its action;
(2) the existence and strength of any motive to retaliate on the part of the agency
officials who 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 situated. Carr v. Social Security Administration, 185 F.3d
1318, 1323 (Fed. Cir. 1999); Semenov v. Department of Veterans Affairs,
2023 MSPB 16, ¶ 35.
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The administrative judge found that the agency showed by clear and
convincing evidence that the individuals involved in the decision to suspend the
appellant’s computer access lacked retaliatory motive. Mohler v. Department of
Homeland Security, MSPB Docket No. CH-1221-18-0119-B-1, Remand File (RF),
Remand Initial Decision (RID) at 9-10. The administrative judge reasoned, in
part, that the appellant’s third-level supervisor, who was unaware of the
appellant’s disclosure, temporarily suspended his computer access based on the
mistaken belief that he improperly sent an email from a Maintenance Mechanic’s
email account in August 2015. RID at 7-9. The appellant argues on review that
his second-level supervisor, who knew of his disclosure, “randomly” identified
the appellant to his third-level supervisor as the one who sent the allegedly
improper email. Mohler v. Department of Homeland Security, MSPB Docket No.
CH-1221-18-0119-B-1, Remand Petition for Review (RPFR) File, Tab 2 at 6-7;
Mohler v. Department of Homeland Security, MSPB Docket No.
CH-1221-18-0119-W-1, Initial Appeal File (IAF), Tab 16 at 78, 206. Similarly,
he asserts that this error could have been corrected if his supervisors had
requested a copy of the email in question. RPFR File, Tab 2 at 7.
To the extent that the appellant argues that his second-level supervisor
influenced his third-level supervisor to retaliate against him, we are not
persuaded. An appellant can establish a prohibited animus toward a
whistleblower based on evidence that an individual with knowledge of the
protected disclosure influenced the official who is accused of taking the personnel
actions. Karnes v. Department of Justice, 2023 MSPB 12, ¶ 19. The
administrative judge considered the motive of the appellant’s second-level
supervisor, but credited his testimony that he did not view the appellant’s
disclosure as reflecting poorly on him. RID at 9; Hearing Transcript (HT) at 183
(testimony of the appellant’s second-level supervisor). In crediting the
appellant’s second-level supervisor, the administrative judge properly considered
that the testimony was undisputed, there was no evidence contradicting his
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testimony, and his testimony was consistent with other evidence. RID at 9-10;
see Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987) (identifying
these and other factors relevant to an administrative judge’s credibility
determinations).
The appellant’s assertion that his second-level supervisor randomly
identified him as the individual who allegedly accessed the Maintenance
Mechanic’s email account, and his suggestion that his supervisors could have
cleared him of any misconduct by requesting to see the email in question, do not
evidence any error by the administrative judge in her credibility finding. In any
event, we observe that the appellant’s second-level supervisor testified that he
identified the appellant as the culprit because of the ongoing interpersonal
conflicts between him and the Maintenance Mechanic. HT at 167 (testimony of
the appellant’s second-level supervisor). The appellant does not dispute that such
conflicts existed or that they were the basis for his supervisor’s logical conclusion
that the appellant sent the alleged email. Thus, we find no reason to disturb the
administrative judge’s finding that Carr factor 2 weighed strongly in the agency’s
favor.
As for the appellant’s temporary relocation, the administrative judge found
that the evidence strongly supported the agency’s explanation that it relocated the
appellant after the Maintenance Mechanic alleged that the appellant harassed him.
RID at 6. The appellant does not dispute the administrative judge’s factual
findings that he and the Maintenance Mechanic had a longstanding interpersonal
conflict and that the Maintenance Mechanic’s job required being physically
located in the Detroit Sector Headquarters, while the appellant could perform his
duties at another location. RID at 6-7. The appellant’s suggestion that the
agency relocated him because of his protected disclosure does not undermine the
agency’s evidence in support of its personnel action. RPFR File, Tab 7 at 7; IAF,
Tab 16 at 33.
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On review, the appellant notes that his first-level supervisor stated that the
appellant’s relocation was “related to” his disclosure. RPFR File, Tab 2 at 7.
This mischaracterizes his statement. The supervisor indicated that the appellant’s
relocation was related to the investigation into the mistaken belief that he sent an
email from the Maintenance Mechanic’s email account. IAF, Tab 16 at 68;
HT at 57-59 (testimony of the appellant’s first-level supervisor). In any event,
the first-level supervisor only became involved in the appellant’s relocation after
the appellant’s second- and third-level supervisors, in conjunction with
management officials outside of the appellant’s chain of command, made the
decision to relocate the appellant in response to the harassment allegation. IAF,
Tab 16 at 33, 87; HT at 57 (testimony of the appellant’s first-level supervisor), 94
(testimony of the appellant’s third-level supervisor), 143 (testimony of the Detroit
Sector Manager). Therefore, his opinion regarding the reasons for the relocation
has little value.
The Board previously resolved the appellant’s discovery-related arguments.
The appellant re-raises arguments on review that the administrative judge
in the underlying appeal abused her discretion by denying his motion to compel.
RPFR File, Tab 2 at 8-9. The Board previously resolved this issue in its Remand
Order. Mohler v. Department of Homeland Security, MSPB Docket No.
CH-1221-18-0119-W-2, Petition for Review (PFR) File, Tab 15, Remand Order
(Remand Order), ¶ 10 n.11 (July 18, 2022). But the appellant renewed the same
motion to compel on remand and the administrative judge again denied the
motion. RF, Tab 6 at 2. The appellant has failed to provide any new bases to
grant the motion, and in fact reiterates verbatim arguments the Board previously
rejected. RPFR File, Tab 2 at 8; PFR File, Tab 1 at 39. Therefore, we decline to
reconsider the appellant’s arguments.
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The appellant’s remaining arguments do not provide a basis for reversing the
initial decision.
The appellant argues for the first time on review that (1) both
administrative judges erred by failing to consider two subsequent investigations
and the appellant’s 2016 permanent relocation, and (2) rumors and speculation
forced him to resign from the agency. RPFR File, Tab 2 at 9-10. The Board
generally will not consider an argument raised for the first time in a petition for
review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence. Clay v. Department of the
Army, 123 M.S.P.R. 245, ¶ 6 (2016); 5 C.F.R. § 1201.115(d). The appellant has
not made such a showing as to the agency’s later investigations and his permanent
relocation. Further, he has not identified when he resigned, and we are unable to
determine if this information was available below. In any event, there is no
evidence below or on review that he exhausted his administrative remedies
regarding these issues. See Chambers v. Department of Homeland Security,
2022 MSPB 8, ¶ 10 (finding that the Board’s jurisdiction over an IRA appeal is
limited to matters an appellant raised with the Office of Special Counsel (citation
omitted)). Nor has the appellant provided any explanation for how these alleged
errors have any bearing on the issues on remand. Remand Order, ¶ 31. Thus, the
arguments provide no basis to grant the appellant’s petition for review.
The appellant also argues for the first time on review that the
administrative judge presiding over the initial appeal was biased against him
because she granted the agency’s extension request but denied his extension
request and motion to compel. RPFR File, Tab 2 at 10. The appellant has not
explained why this argument could not have been raised before the Board in his
petition for review in that appeal or before the administrative judge on remand,
and thus we need not consider it. In any event, the appellant has failed to
overcome the presumption of honesty and integrity that accompanies
7
administrative adjudicators. See Oliver v. Department of Transportation,
1 M.S.P.R. 382, 386 (1980).
We similarly decline to consider the appellant’s arguments, also raised for
the first time on review, disagreeing with the Board’s findings in its Remand
Order. RPFR File, Tab 7 at 5, 11. For example, the appellant reargues that his
disclosure was a protected activity under 5 U.S.C. § 2302(b)(9)(C). RPFR File,
Tab 2 at 11. The Board concluded in its Remand Order that the appellant did not
engage in protected activity under 5 U.S.C. § 2302(b)(9)(C). Remand Order,
¶¶ 1, 14-16. Under the law of the case doctrine, a tribunal will not reconsider
issues that have already been decided in an appeal, unless there is new and
material evidence adduced at a subsequent trial, controlling authority has made a
contrary decision of law, or the prior decision was clearly erroneous and would
work a manifest injustice. O’Connell v. Department of the Navy, 73 M.S.P.R.
235, 240 (1997). The appellant’s new legal theory that his disclosure should be
protected because the agency “would have escalated” it to its Office of Inspector
General if it were “severe enough in nature, or expos[ed] a larger issue” does not
fall within one of these exceptions. RPFR File, Tab 2 at 11. It is not based on
new evidence or law, and does not identify any error in the Remand Order.
Therefore, we DENY the petition for review and AFFIRM the initial
decision.
NOTICE OF APPEAL RIGHTS 2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
9
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
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with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 3 The court of appeals must receive your petition for
3
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.