Mia S. Rhee v. Department of the Treasury

N OTE : This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MIA S. RHEE,
Petitioner
v.
DEPARTMENT OF THE TREASURY,
Respondent
______________________
2023-1238
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0432-21-0165-I-1.
______________________
Decided: February 20, 2025
______________________
MIA RHEE , Irvine, CA, pro se.
L IRIDONA SINANI , Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by B RIAN M.
B OYNTON, DEBORAH A NN B YNUM , PATRICIA M. MCCARTHY.
______________________
Before T ARANTO, HUGHES, and C UNNINGHAM , Circuit
Judges.
Case: 23-1238 Document: 60 Page: 1 Filed: 02/20/2025

-- 1 of 7 --

RHEE v. TREASURY 2
P ER C URIAM .
Mia S. Rhee appeals a decision of the Merit Systems
Protection Board, which affirmed an initial decision by the
Treasury Inspector General for Tax Administration that
removed Ms. Rhee from the position of Special Agent. We
affirm.
I
Ms. Rhee served as a Special Agent in the Treasury In-
spector General for Tax Administration’s Office of Investi-
gations, an agency within the Department of the Treasury,
from 2002 to 2021. The Office of Investigations conducts
administrative and criminal investigations into employee
integrity, violence and threats against the IRS, and exter-
nal threats to the IRS.
Beginning in August 2019, Ms. Rhee was supervised by
Assistant Special Agent-in-Charge, Angela Druen.
Ms. Druen was supervised by Special Agent-in-Charge Rod
Ammari, who in turn was supervised by Assistant Inspec-
tor General for Investigations Susan Moats. Shortly after
becoming Ms. Rhee’s supervisor, Ms. Druen became aware
that Ms. Rhee was significantly behind on her workload.
R.A. 16. Upon realizing that Ms. Rhee was behind on her
workload, Ms. Druen communicated her concerns to
Ms. Rhee and stated her expectations during a mid-year
review in April 2020. R.A. 18. Seeing no improvement,
Ms. Druen placed Ms. Rhee on a Performance Improve-
ment Plan on July 1, 2020. J.A. 18–19. Ms. Druen spoke
with her multiple times during the PIP period, from July 1,
2020, through September 30, 2020. R.A. 19–20, 22. On Oc-
tober 5, 2020, Ms. Druen issued Ms. Rhee an interim rat-
ing of unacceptable for the Performance Improvement Plan
period based on Ms. Rhee’s failure to meet the first critical
element, Employee Responsibilities, and Ms. Rhee’s unac-
ceptable performance in each of the other three critical el-
ements. R.A. 22. Ms. Druen concluded she would propose
removal and identified Mr. Ammari as the deciding official.
Case: 23-1238 Document: 60 Page: 2 Filed: 02/20/2025

-- 2 of 7 --

RHEE v. TREASURY 3
R.A. 23. After discussion with Ms. Moats, Mr. Ammari
recused himself as the deciding official because he was in-
volved in prior performance and disciplinary actions con-
cerning Ms. Rhee. R.A. 23–24. In response, Ms. Moats
designated Special Agent-in-Charge Gary Smith as the de-
ciding official. R.A. 24. On October 23, 2020, Ms. Druen is-
sued a proposal to remove Ms. Rhee for unacceptable
performance. R.A. 24. On December 16, 2020, Ms. Rhee
provided a written response to Mr. Smith. R.A. 26.
On January 5, 2021, after reviewing all the submitted
material, Mr. Smith issued a decision removing Ms. Rhee
for unacceptable performance. R.A. 26. Mr. Smith found
that Ms. Rhee did not identify information contradicting
the proposal’s findings or argue those findings were inac-
curate. R.A. 26–27. Mr. Smith considered the mitigating
circumstances raised and Ms. Rhee’s allegations of retalia-
tion but ultimately found that the numerous examples in
the proposal established Ms. Rhee’s unacceptable perfor-
mance and that the allegations of retaliation were uncom-
pelling. R.A. 27. Ms. Rhee was removed effective
January 5, 2021. R.A. 27.
On January 11, 2021, Ms. Rhee filed an appeal at the
Board challenging her removal. R.A. 27. After discovery
and a three-day hearing, the administrative judge affirmed
the agency’s removal decision. R.A. 11. The administrative
judge determined that the agency had met its burden of
proof to remove Ms. Rhee. Specifically, the administrative
judge determined that: (1) the agency established perfor-
mance standards and communicated them to Ms. Rhee at
the beginning of the performance appraisal period;
(2) Ms. Rhee’s performance failed to meet the agency’s es-
tablished performance standards, including before being
placed on the PIP; (3) the agency warned Ms. Rhee of the
inadequacies of her performance during the appraisal pe-
riod and gave her an adequate opportunity to improve; and,
(4) after an adequate improvement period, Ms. Rhee’s per-
formance remained unacceptable in at least one critical
Case: 23-1238 Document: 60 Page: 3 Filed: 02/20/2025

-- 3 of 7 --

RHEE v. TREASURY 4
element. R.A. 11–73. The administrative judge further de-
termined that Ms. Rhee failed to meet her burden to prove
her affirmative defenses of harmful procedural error, due
process violation, whistleblower retaliation, and discrimi-
nation on the basis of race, sex, and national origin. R.A.
73–95.
Ms. Rhee filed a petition for full Board review. R.A. 1.
In its final decision, the Board denied Ms. Rhee’s petition
and affirmed the administrative judge’s decision, except
that it modified that decision to find that Ms. Rhee did not
meet the contributing factor standard of her whistleblower
retaliation defense even through means other than the
knowledge/timing test. R.A. 2–5.
Ms. Rhee appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
II
We set aside a Board decision only if it is “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in ac-
cordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c).
III
Ms. Rhee asserts that the Board “failed to take into ac-
count or consider relevant facts and records presented.”
Pet. Br. at 2. Ms. Rhee’s informal brief asserts that “facts
opposing the MSPB initial decision and final order are
listed in the continuing pages,” id., but no such pages were
included with her informal brief. The burden of establish-
ing reversible error in the MSPB’s decision rests with
Ms. Rhee. See Sistek v. Dep’t of Veterans Affs., 955 F.3d
948, 953 (Fed. Cir. 2020) (“The petitioner bears the burden
of establishing reversible error in the Board’s final deci-
sion.”). Ms. Rhee’s assertions, unsubstantiated by any rec-
ord support, fail to carry that burden.
Case: 23-1238 Document: 60 Page: 4 Filed: 02/20/2025

-- 4 of 7 --

RHEE v. TREASURY 5
Further, Ms. Rhee asserts that the administrative
judge “abused her discretion, did not adequately hear the
case, and made erroneous credibility determinations.”
Pet. Br. at 2. In support of these assertions, Ms. Rhee re-
lies on various arguments made in her petition for review.
We address each argument in turn.
First, Ms. Rhee alleges that the administrative judge
abused her discretion by denying Ms. Rhee’s request to re-
schedule the hearing on April 19, 2021. R.A. 118–19. Ad-
ministrative judges have broad discretion in regulating the
proceedings before them. See Olivares v. Merit Sys. Prot.
Bd., 17 F.3d 386, 388 (Fed. Cir. 1994) (“MSPB has broad
discretion to control its own docket[.]”). A motion to re-
schedule a hearing need not be granted in the absence of
good cause. Johnson v. Dep’t of Treasury, 721 F.2d 361, 364
(Fed. Cir. 1983). Whether or not good cause exists is gener-
ally determined per the unique facts of each case. Id.
The administrative judge denied Ms. Rhee’s request to
postpone the hearing because Ms. Rhee did not show good
cause. R.A. 116. As the administrative judge explained,
Ms. Rhee stated in her motion that she had recently taken
her sister and mother to urgent care and was required to
monitor and care for them, but she presented neither med-
ical documentation of her family members’ conditions nor
documentation or doctor’s orders as to Ms. Rhee’s specific
obligations. Id.; see also 5 C.F.R. § 1201.51(c) (stating the
requirement that a motion for postponement of the hearing
“must be made in writing and must either be accompanied
by an affidavit or sworn statement under 28 U.S.C.
§ 1746”). Considering the lack of information before her,
the administrative judge did not abuse her discretion in
denying Ms. Rhee’s postponement request. See Johnson,
721 F.2d at 364–65 (finding no abuse of discretion in deny-
ing third request for continuance based on petitioner’s
counsel’s failure to convey sufficient information regarding
the need for postponement).
Case: 23-1238 Document: 60 Page: 5 Filed: 02/20/2025

-- 5 of 7 --

RHEE v. TREASURY 6
Second, Ms. Rhee alleges that the administrative judge
abused her discretion by not considering certain documents
for the initial decision. R.A. 119. Specifically, Ms. Rhee
claims certain documents were not mentioned in the ad-
ministrative judge’s decision, and thus, concludes that the
administrative judge did not consider them. R.A. 119. But
the administrative judge is not required to specifically
mention every document considered in the initial decision.
See 5 C.F.R. § 1201.111(b) (listing what “[e]ach initial deci-
sion will contain”). Even so, the administrative judge is-
sued an 85-page initial decision that identified record
evidence relevant to Ms. Rhee’s appeal and properly con-
sidered this evidence in reaching the final determination.
R.A. 11–95. Thus, the administrative judge did not abuse
her discretion by not mentioning certain documents in the
initial decision.
Third, Ms. Rhee alleges that the administrative judge
abused her discretion by limiting the examination of
Ms. Moats at the hearing. R.A. 119. Ms. Rhee argues that
she was prevented from questioning Ms. Moats “regarding
Rod Ammari’s duties and responsibilities that would have
revealed his direct role and responsibilities as the second-
ary manager and reviewing official.” R.A. 119.
Procedural matters related to evidentiary issues “fall
within the sound discretion of the board and its officials.”
Curtin v. Off. of Pers. Mgmt., 846 F.2d 1373, 1378 (Fed. Cir.
1988) (citations omitted). We “will not overturn the board
on such matters unless an abuse of discretion is clear and
is harmful.” Id. The administrative judge found that
Ms. Rhee’s theory of ex parte communications between
Mr. Ammari and Mr. Smith was “speculation without evi-
dentiary support.” R.A. 76–77. And the Board found that
“there is no evidence in the record that establishes that the
second-line supervisor issued the decision to remove
[Ms. Rhee] or that he influenced, pressured, conspired
with, or directed any individual to place the appellant on a
PIP or to remove her.” R.A. 3 n.3. Because Ms. Rhee has
Case: 23-1238 Document: 60 Page: 6 Filed: 02/20/2025

-- 6 of 7 --

RHEE v. TREASURY 7
provided no argument or record support to challenge these
findings, she has not established that the Board abused its
discretion in limiting the testimony of Ms. Moats.
IV
We have considered Mr. Rhee’s other arguments and
find them unpersuasive: Because substantial evidence sup-
ports the Board’s decision, we affirm.
AFFIRMED
C OSTS
No costs.
Case: 23-1238 Document: 60 Page: 7 Filed: 02/20/2025

-- 7 of 7 --