Todd I. Weathersbee v. Department of the Treasury

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TODD I. WEATHERSBEE,
Petitioner
v.
DEPARTMENT OF THE TREASURY,
Respondent
______________________
2016-2628
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0432-15-0634-I-1.
______________________
Decided: January 12, 2017
______________________
T ODD I. WEATHERSBEE , Los Angeles, CA, pro se.
CHRISTOPHER L. HARLOW, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by BENJAMIN C. MIZER, R OBERT E. K IRSCHMAN, J R.,
REGINALD T. BLADES , J R.
______________________
Before L OURIE, T ARANTO, and CHEN, Circuit Judges.

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WEATHERSBEE v. TREASURY 2
P ER CURIAM .
Todd I. Weathersbee (“Weathersbee”) appeals from
the decision of the Merit Systems Protection Board
(“MSPB” or “the Board”) affirming the Department of
Treasury’s (“Treasury”) decision to terminate his em-
ployment due to his failure to perform at the minimum
level for retention. Weathersbee v. Dep’t of the Treasury,
No. SF-0432-15-0634-I-1, 2016 WL 4425101 (M.S.P.B.
Aug. 18, 2016) (“Final Order”). Because the Board did not
err in affirming Treasury’s decision, we affirm.
BACKGROUND
Weathersbee was employed as a Revenue Officer with
the Internal Revenue Service (“IRS”), where he was
responsible for tax delinquency case management. In
December 2013, Weathersbee’s supervisor informed him
that his performance in four of the five critical duty
elements had been unsatisfactory. Following this notifi-
cation, the IRS provided Weathersbee with a sixty-day
“informal performance counseling plan,” to give him a
chance to improve his performance. Weathersbee v. Dep’t
of the Treasury, No. SF-0432-15-0634-I-1, 2015 WL
9436529, at *4 (M.S.P.B. Dec. 16, 2015) (“Initial Deci-
sion”). However, his performance did not improve.
In August 2014, Weathersbee’s supervisor notified
him that his performance in those same critical duty
elements was still unsatisfactory. In the notice, Weath-
ersbee’s supervisor identified forty-seven examples of his
failure to satisfy the minimum performance standards.
Following this notification, the IRS placed Weathersbee
on a ninety-day performance improvement period (“PIP”),
to give him a chance to meet the minimum performance
standards. To aid him in improving his performance, the
IRS provided Weathersbee with twenty-four specific
performance recommendations, as well as mentorship and
weekly progress meeting opportunities. Weathersbee
refused to participate in the process, maintaining that

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WEATHERSBEE v. TREASURY 3
“[t]he Internal Revenue Service does not pay me wages to
listen to [my supervisor’s] assessment of my perfor-
mance.” Id. at *5.
On March 4, 2015, Weathersbee’s second-line supervi-
sor proposed his removal for failure to satisfy minimum
performance levels in the four critical areas. Weathersbee
submitted a written reply to the proposal and the IRS
Area Director issued a termination decision sustaining
the reasons and specifications set forth in the proposal.
On June 12, 2015, Weathersbee appealed Treasury’s
termination decision to the MSPB, arguing, inter alia,
that “he ha[d] not received any letter or official notice
regarding his removal or appeal rights.” Id. at *10.
On December 16, 2015, the Board’s administrative
judge (“AJ”) issued an initial decision affirming Treas-
ury’s termination action and concluding, inter alia, that
Weathersbee’s purported failure to receive a copy of the
final decision did not constitute harmful error. See id. at
*29. The AJ determined that Treasury had sent Weath-
ersbee three copies of its termination decision—one by
first class mail, another by first class certified mail, and
the third by UPS overnight delivery—and that Weath-
ersbee had rejected both the Postal Service and UPS
deliveries as “Receiver did not want, refused delivery.”
See id. at *7–8.
Weathersbee appealed to the full Board. On August
18, 2016, the Board issued its final order affirming the
initial decision of the AJ. Final Order, 2016 WL 4425101,
at ¶ 1. This appeal followed. We have jurisdiction under
5 U.S.C. § 7703(c).
D ISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We must affirm the Board’s decision
unless it was: “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law;

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WEATHERSBEE v. TREASURY 4
(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 Briggs
v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir.
2003). “Substantial evidence” is “such relevant evidence
as a reasonable mind might accept as adequate to support
a conclusion.” Dickey v. Office of Pers. Mgmt., 419 F.3d
1336, 1339 (Fed. Cir. 2005) (quoting Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)).
On appeal, Weathersbee challenges only the Board’s
determination that his alleged failure to receive the IRS’s
termination decision did not constitute harmful error. See
Final Order, 2016 WL 4425101, at ¶ 14. Weathersbee
argues that the Board failed to consider his assertion that
he did not receive the agency’s termination decision.
Appellant’s Br. 2 (item 2). Weathersbee maintains that
“if the evidence was ruled on according to law, . . . [he]
would have been the prevailing party” because it “would
have confirmed [his] claim of harmful procedural error.”
Id. at 7.
The government responds that the record demon-
strates the Board’s full consideration of Weathersbee’s
argument regarding delivery of the IRS’s termination
decision. Appellee’s Br. 5. The government maintains
that the Board correctly concluded that “[t]he appellant
has denied receipt or avoided service of virtually every
document in this appeal . . . in what [it] conclude[s] is an
attempt to obfuscate the process,” Initial Decision, 2015
WL 9436529, at *23, and that, despite those disruptive
efforts, Weathersbee had apparently received the agency’s
termination letter because he began the appellate process
within days of the agency’s decision, see id. Thus, the
government argues, the Board correctly determined that
Weathersbee’s “delivery” argument was not credible and
was legally baseless. Appellee’s Br. 6.

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WEATHERSBEE v. TREASURY 5
We agree with the government that substantial evi-
dence supports the Board’s finding that Weathersbee
failed to show harmful error because he was properly
served with a copy of the IRS’s termination decision. See
Initial Decision, 2015 WL 9436529, at *20; Final Order,
2016 WL 4425101, at ¶ 14. Specifically, the Board found
that: (1) on May 14, 2015, the day after the decision letter
was mailed, Weathersbee sent a “global direction” to the
mail processing center he had designated to receive his
mail that all mail from the IRS should be refused, Final
Order, 2016 WL 4425101, at ¶ 6 (internal quotation
marks omitted); (2) because the two letters requiring
Weathersbee’s signature were delivered to his address
and refused, the third letter—the one sent by first-class
mail that did not require his signature—was presumed to
have been delivered to Weathersbee because it was not
returned to the IRS, see id.; (3) Weathersbee had done
nothing to rebut the presumption of receipt of the third
letter, see id. at ¶ 14; and (4) the presumption of receipt of
the third letter is consistent with Weathersbee’s behavior
because he asserted that he attempted to file a Petition
for Appeal as early as May 24, 2015, eleven days after IRS
mailed the letter, see Initial Decision, 2015 WL 9436529,
at *22–23.
Thus, the Board concluded that any harm suffered by
Weathersbee because of his failing to read the received
letter or to acknowledge its receipt was not due to any
action or inaction of the IRS and consequently did not
constitute harmful error. See Final Order, 2016 WL
4425101, at ¶ 6. That conclusion was supported by sub-
stantial record evidence.
We also find no abuse of discretion or error of law in
the Board’s decision. Weathersbee does not identify any
evidence that would support the conclusion that the IRS
failed to notify him of its termination decision or to rebut
the Board’s factual findings to the contrary. The record in
this case supports the Board’s finding that the IRS noti-

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WEATHERSBEE v. TREASURY 6
fied Weathersbee of its termination decision, despite his
attempts to thwart the notification, and thus its conclu-
sion that Weathersbee failed to meet his burden of prov-
ing harmful procedural error by a preponderance of the
evidence. 5 C.F.R. § 1201.56 (“The appellant has the
burden of proof, by a preponderance of the evidence, with
respect to . . . (c) affirmative defenses.”).
CONCLUSION
We have considered Weathersbee’s remaining argu-
ments, but find them unpersuasive. For the foregoing
reasons, the decision of the Board is affirmed.
AFFIRMED

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