William H. Ferrell v. Department of the Interior

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WILLIAM H. FERRELL,
Petitioner
v.
DEPARTMENT OF THE INTERIOR,
Respondent
______________________
2025-1533
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-1221-22-0459-W-1.
______________________
Decided: December 1, 2025
______________________
WILLIAM H. F ERRELL , Orange Park, FL, pro se.
K ELLY P ALAMAR , Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by T ARA K.
HOGAN, P ATRICIA M. MCCARTHY , BRETT SHUMATE.
______________________
Before CHEN, BRYSON , and CUNNINGHAM , Circuit Judges.
P ER CURIAM .
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FERRELL v. INTERIOR 2
William H. Ferrell petitions for review of a Merit Sys-
tems Protection Board (“Board”) final order adopting the
administrative judge’s initial decision, which denied
Mr. Ferrell’s request for corrective action pursuant to the
Whistleblower Protection Act (“WPA”) and the Whistle-
blower Protection Enhancement Act (“WPEA”). Ferrell
v. Dep’t of the Interior, No. AT-1221-22-0459-W-1,
2025 MSPB LEXIS 1055 (M.S.P.B. Feb. 28, 2025)
(S. App’x 5–10) (“Final Order”); Ferrell v. Dep’t of the Inte-
rior, No. AT-1221-22-0459-W-1, 2024 WL 2160642
(M.S.P.B. Feb. 28, 2024) (S. App’x 12–42) (“Initial Deci-
sion”).1 For the reasons discussed below, we affirm.
I. BACKGROUND
Mr. Ferrell has been employed with the Department of
the Interior’s (“the Agency”) Office of the Secretary since
2009, currently working as an Information Technology
(“IT”) Compliance Specialist. Initial Decision at 2;
S. App’x 137, 752 at 12:4–24.
As part of his position, Mr. Ferrell received perfor-
mance appraisal ratings in his annual Employee Perfor-
mance Appraisal Plans (“EPAP”). See, e.g., Initial Decision
at 17–18. Specifically, on November 28, 2016, Mr. Ferrell
received a summary rating of “Superior” on his EPAP for
the 2016 fiscal year. Initial Decision at 17; S. App’x 825.
On November 14, 2017, Mr. Ferrell received a summary
rating of “Fully Successful” on his EPAP for the 2017 fiscal
year. Initial Decision at 17; S. App’x 879. From 2018 to
1 We refer to the corrected supplemental appendix
filed by the government, ECF No. 43, as “S. App’x”
throughout this opinion. Citations to the Board’s decisions
in this opinion are to the versions included in the govern-
ment’s supplemental appendix. For example, Final Order
at 1 is found at S. App’x 5, and Initial Decision at 1 is found
at S. App’x 12.
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FERRELL v. INTERIOR 3
2020, Mr. Ferrell received “Unsatisfactory” or “Unaccepta-
ble” summary ratings on his EPAPs.2 Initial Decision
at 17–18; S. App’x 929–40, 978–90, 1011–20. The Agency
annually denied Mr. Ferrell’s within-grade pay increase
beginning in 2018 because of his performance. Initial De-
cision at 18; S. App’x 923, 1002, 1005, 1049. On Decem-
ber 3, 2021, the Agency placed Mr. Ferrell on a Notice of
Opportunity to Demonstrate Acceptable Performance
(“NODAP”) while rescinding his rating for the 2021 fiscal
year. Initial Decision at 18; S. App’x 1056.
From December 2016 through October 2020, Mr. Fer-
rell repeatedly reported to his supervisors and officials that
several IT managers disregarded their obligations under
the Federal Information Security Modernization Act of
2014 and violated other laws, rules, or regulations. Initial
Decision at 2–4; S. App’x 137. In March 2021, Mr. Ferrell
filed a complaint with the Office of Special Counsel
(“OSC”), arguing that the Agency’s personnel actions were
taken in retaliation for his protected whistleblower activi-
ties. Initial Decision at 5; S. App’x 137. This complaint fol-
lowed two other complaints filed in July 2017 and
December 2017 with OSC, as well as a complaint filed with
the Agency’s Office of the Inspector General in July 2020.
Initial Decision at 5. On April 20, 2022, OSC terminated
its inquiry into Mr. Ferrell’s allegations in the 2021 com-
plaint but notified him that he could file an individual right
of action appeal with the Board. S. App’x 137–38.
On June 23, 2022, Mr. Ferrell filed an individual right
of action appeal with the Board seeking corrective action
under the WPA and WPEA. Initial Decision at 1;
S. App’x 44–131. In September and October 2022, the
2 The EPAP forms used from 2019 onwards update
the terminology used for an “Unsatisfactory” rating to an
“Unacceptable” rating. Compare S. App’x 929, with id.
at 978, 1011.
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FERRELL v. INTERIOR 4
administrative judge determined that Mr. Ferrell alleged
seven non-frivolous instances in which he made protected
disclosures under 5 U.S.C. § 2302(b)(8), in addition to four
complaints in which he alleged that he engaged in pro-
tected activities pursuant to 5 U.S.C. § 2302(b)(9). Initial
Decision at 2–5; S. App’x 192–93, 230–34.
On February 28, 2024, the administrative judge denied
Mr. Ferrell’s request for corrective action under the WPA
and WPEA. Initial Decision at 1. The administrative
judge determined that Mr. Ferrell did not show by a pre-
ponderance of the evidence that his seven non-frivolous dis-
closures were protected disclosures under 5 U.S.C.
§ 2302(b)(8). Id. at 6–14. In addition, the administrative
judge determined that the Agency established by clear and
convincing evidence that it would have taken the same per-
sonnel action in the absence of Mr. Ferrell’s protected ac-
tivity. Id. at 14–24. Accordingly, the administrative judge
denied Mr. Ferrell’s request for corrective action. Id. at 24.
On February 28, 2025, the administrative judge’s initial
decision became the Board’s final decision. Final Order
at 1; see also 5 C.F.R. § 1200.3(b).
Mr. Ferrell petitions for review in this court. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II. D ISCUSSION
“We must affirm the decision of the Board unless it is
(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
Cobert v. Miller, 800 F.3d 1340, 1347–48 (Fed. Cir. 2015)
(citing 5 U.S.C. § 7703(c)). We review the Board’s conclu-
sions of law de novo and the Board’s factual findings for
substantial evidence. Brenner v. Dep’t of Veterans Affs.,
990 F.3d 1313, 1322 (Fed. Cir. 2021). “Substantial evi-
dence is ‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Id.
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FERRELL v. INTERIOR 5
(quoting Shapiro v. Soc. Sec. Admin., 800 F.3d 1332, 1336
(Fed. Cir. 2015)). “We review the [Board]’s evidentiary rul-
ings for abuse of discretion.” Sharpe v. Dep’t of Just.,
916 F.3d 1376, 1379 (Fed. Cir. 2019).
Mr. Ferrell makes five principal arguments: (1) the
Board “routinely ignored or failed to include” his “Undis-
puted Material Facts” and failed to recognize that these
facts were not disputed by the Agency, Petitioner’s Br. 3–
5; (2) the Board impermissibly denied him the opportunity
to call certain witnesses, id. at 5–6; (3) the Board improp-
erly excluded or ignored certain evidence, id. at 6–10, 16–
17; (4) the Board erred in concluding that the Agency would
have taken the same personnel actions in the absence of
the protected activities because it “improperly weighed”
the Carr factors, id. at 10–13; see Carr v. Soc. Sec. Admin.,
185 F.3d 1318, 1323 (Fed. Cir. 1999); and (5) the Board
failed to recognize the alleged due process violations he suf-
fered during his duty station change, Petitioner’s
Br. at 14–15. We address each argument in turn.
A.
First, we disagree with Mr. Ferrell’s suggestion that
the Board “routinely ignored or failed to include” his “Un-
disputed Material Facts” and failed to recognize that these
facts were not in dispute. Petitioner’s Br. 3–5. “The failure
to discuss particular contentions in a case . . . does not
mean that the tribunal did not consider them in reaching
its decision.” Lowder v. Dep’t of Homeland Sec., 504 F.3d
1378, 1383 (Fed. Cir. 2007); see, e.g., Medtronic, Inc.
v. Daig Corp., 789 F.2d 903, 906 (Fed. Cir. 1986) (“We pre-
sume that a fact finder reviews all the evidence presented
unless he explicitly expresses otherwise.”). In this case, the
administrative judge informed Mr. Ferrell that she would
not consider Mr. Ferrell’s “Undisputed Material Facts” as
undisputed because the Agency disagreed that they were
undisputed but that he could address this evidence at the
hearing. S. App’x 1087. The Board never expressly stated
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FERRELL v. INTERIOR 6
that it would not review Mr. Ferrell’s “Undisputed Mate-
rial Facts,” to the extent that they were raised as evidence
at the hearing, and the record does not otherwise provide a
basis from which we can conclude that the Board failed to
review this evidence. Accordingly, we disagree that the
Board erred with respect to its treatment of Mr. Ferrell’s
allegedly “Undisputed Material Facts.”
B.
Second, we disagree with Mr. Ferrell’s argument that
the Board improperly denied him the opportunity to call
critical witnesses during his hearing. Petitioner’s Br. 5–6.
The administrative judge excluded Mr. Ferrell’s requested
witnesses as a sanction for failing to follow the Board’s or-
ders but allowed Mr. Ferrell to testify on his own behalf.
S. App’x 1087; see 5 C.F.R. § 1201.43(a)(2) (“When a party
fails to comply with an order, the judge may . . . [p]rohibit
the party failing to comply with the order from introducing
evidence concerning the information sought, or from other-
wise relying upon testimony related to that infor-
mation[.]”); see, e.g., Harp v. Dep’t of Army, 791 F.2d 161,
163 (Fed. Cir. 1986) (holding that the presiding official
properly excluded evidence due to respondent’s failure to
comply with an order). The administrative judge also pro-
vided adequate warning to Mr. Ferrell about this potential
sanction. See 5 C.F.R. § 1201.43 (“Before imposing a sanc-
tion, the judge shall provide appropriate prior warning, al-
low a response to the actual or proposed sanction when
feasible, and document the reasons for any resulting sanc-
tion in the record.”). Specifically, the administrative judge
granted the Agency’s motion for sanctions only after first
warning Mr. Ferrell, on two separate occasions, that he
could be subject to sanctions if he continued to communi-
cate with Agency officials regarding his ongoing litigation.
S. App’x 195 (September 15, 2022 order warning about
sanctions); S. App’x 322–23 (December 9, 2022 order warn-
ing about sanctions); S. App’x 406 (June 16, 2023 order
granting the Agency’s motion for sanctions). Accordingly,
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FERRELL v. INTERIOR 7
the Board did not abuse its discretion when it excluded
Mr. Ferrell’s witnesses due to his repeated failures to com-
ply with the administrative judge’s orders.
C.
Third, we disagree with Mr. Ferrell’s argument that
the Board improperly limited, or did not consider, the evi-
dence he offered. Petitioner’s Br. 6–10, 16–17. As dis-
cussed above, we presume the Board reviewed this
evidence given that it did not explicitly express otherwise.
See Medtronic, 789 F.2d at 906. Furthermore, “[i]f an
abuse of discretion did occur with respect to the discovery
and evidentiary rulings, in order for petitioner to prevail
on these issues he must prove that the error caused sub-
stantial harm or prejudice to his rights which could have
affected the outcome of the case.” Curtin v. Off. of Pers.
Mgmt., 846 F.2d 1373, 1379 (Fed. Cir. 1988). Mr. Ferrell
has not shown that the Board abused its discretion by im-
properly limiting the evidence he offered because he has
not explained how the Board’s alleged error affected the
outcome of his case. See, e.g., Petitioner’s Br. 16–17 (rais-
ing only conclusory arguments that the Board “grievously
imperiled [his] ability to support and prove his case” be-
cause its decision to ignore his evidence led to the “erod[ing
of] his credibility” and “crippl[ed] his chances” to get a
higher EPAP rating). Therefore, we conclude that the
Board did not commit reversible error with respect to its
consideration of the evidence offered by Mr. Ferrell.
D.
Fourth, we disagree with Mr. Ferrell’s argument that
the Board erred in its weighing of the factors set out in Carr
v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999).
Petitioner’s Br. 10–13. In the context of whistleblower re-
taliation, an agency may rebut the claim by proving “by
clear and convincing evidence that it would have taken the
same personnel action in the absence of whistleblowing.”
Carr, 185 F.3d at 1323. Analysis of whether the agency
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FERRELL v. INTERIOR 8
has satisfied its burden of proof involves consideration of
three factors: (1) “the strength of the agency’s evidence in
support of its personnel 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 em-
ployees who are not whistleblowers but who are otherwise
similarly situated.” Id.
As to the first Carr factor, substantial evidence sup-
ports the Board’s determinations that “the [A]gency had
strong evidence to support the EPAP ratings from 2017 to
2021; the denials of the within-grade increases starting in
2018; and the placement of the NODAP in 2021” and “had
strong reasons to relocate the appellant in November
2019.” Initial Decision at 21–22. After reviewing the
EPAPs submitted by the Agency, Mr. Ferrell’s supervisor’s
testimony, and Mr. Ferrell’s own testimony, the Board de-
termined that the Agency was not “requiring [Mr. Ferrell]
to perform illegal activity,” and was not, “as such, vindicat-
ing him in refusing to perform the duties assigned.” Id.
at 17–21. Rather, the Board determined that Mr. Ferrell
was “basically refusing to follow his supervisor’s instruc-
tions.” Id. at 20. Based on the record, we conclude that
substantial evidence—including that Mr. Ferrell repeat-
edly failed to perform his assigned duties—supports the
Board’s finding that this factor favors the Agency’s posi-
tion. See, e.g., S. App’x 840–55 (supervisor testifying about
Mr. Ferrell’s EPAP for the 2017 and 2018 fiscal years);
S. App’x 966–977 (supervisor testifying about Mr. Ferrell’s
EPAP for the 2019 and 2020 fiscal years and that Mr. Fer-
rell was reassigned because he “could/would not self-sup-
port his home-based work environment” and that he “has
not been performing his duties”); S. App’x 1049–55 (super-
visor explaining continued denial of Mr. Ferrell’s within-
grade increase since September 2, 2018 because he was
“not performing at an acceptable level of competence”);
S. App’x 1064–77 (supervisor finding it necessary to place
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FERRELL v. INTERIOR 9
Mr. Ferrell on NODAP because of his unsatisfactory per-
formance).
Substantial evidence also supports the Board’s deter-
mination with respect to the second Carr factor. After
Mr. Ferrell’s supervisors testified, the Board determined
that, “while some institutional bias may have existed due
to their knowledge of [Mr. Ferrell’s] protected activ-
ity, . . . no other motive to retaliate existed.” Initial Deci-
sion at 22. The Board’s assessment of this factor was based
on the credibility of the testimony provided by Mr. Ferrell’s
supervisors. See Jones v. Dep’t of Health & Hum. Servs.,
834 F.3d 1361, 1369 (Fed. Cir. 2016) (“Under the substan-
tial evidence standard of review, we do not reweigh evi-
dence on appeal.” (cleaned up and citation omitted)); King
v. Dep’t of Health & Hum. Servs., 133 F.3d 1450, 1453
(Fed. Cir. 1998) (“[A]n evaluation of witness credibility is
within the discretion of the Board and . . . in general, such
evaluations are ‘virtually unreviewable’ on appeal.” (cita-
tion omitted)). Accordingly, we will not disturb the Board’s
finding on this factor.
As to the third Carr factor, the Board did not err in
finding this factor “neutral” because it found persuasive
“the [A]gency’s assertion that there simply was no simi-
larly situated employee.” Initial Decision at 23. Mr. Fer-
rell argues that the Agency was responsible for providing
“similarly situated employees.” Petitioner’s Br. 11. Alt-
hough the absence of evidence regarding similarly situated
employees cannot favor the government, “the absence of
any evidence relating to Carr factor three can effectively
remove that factor from the analysis.” Whitmore v. Dep’t of
Lab., 680 F.3d 1353, 1374 (Fed. Cir. 2012); Rickel v. Dep’t
of the Navy, 31 F.4th 1358, 1366 (Fed. Cir. 2022) (“Because
the agency need not prove every factor weighs in its favor,
the absence of evidence related to Carr factor three is not
fatal to the agency.”). Consequently, we “consider the rec-
ord as a whole and balance the Carr factors to determine
whether substantial evidence supports the Board’s finding
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FERRELL v. INTERIOR 10
that the agency clearly and convincingly proved it would
have removed the employee independent of his protected
disclosures.” Rickel, 31 F.4th at 1366 (cleaned up) (quoting
Robinson v. Dep’t of Veterans Affs., 923 F.3d 1004, 1019
(Fed. Cir. 2019)). We find no error in the Board’s weighing
of the Carr factors. Therefore, we conclude that substan-
tial evidence supports the Board’s determination that the
Agency would have taken the same personnel actions
against Mr. Ferrell even absent his protected activities.
E.
Fifth, we disagree with Mr. Ferrell’s argument that the
Board failed to recognize that he suffered an alleged due
process violation when the Agency changed his duty station
and when it charged him with absent without leave
(“AWOL”) status. Petitioner’s Br. 14–15. As an initial
matter, Mr. Ferrell points to no support for the assertion
that due process requires that a supervisor must provide
an employee adequate prior notice and an opportunity to
respond prior to charging that employee with AWOL status
or changing his duty station. Moreover, the record reflects
that Mr. Ferrell had sufficient notice such that he had time
in which he could have responded prior to when the actions
went into effect. In 2019, Mr. Ferrell locked himself out of
the government’s authentication system for a period of
around five months, and he was unable to perform the du-
ties required by his position. S. App’x 971–73; see Initial
Decision at 22. Consequently, he was charged with AWOL
status in November 2019, and the Agency changed
Mr. Ferrell’s permanent duty station effective Novem-
ber 24, 2019. S. App’x 742, 973. He was subsequently
charged with additional AWOL status in December 2019.
S. App’x 973. The record reflects that Mr. Ferrell’s super-
visor warned Mr. Ferrell that he would be charged with
AWOL status if he did not report to the office to address
his access issues. Id. Mr. Ferrell does not identify any-
thing in his briefing on appeal that indicates he was denied
due process. See, e.g., Petitioner’s Br. 14–15. Accordingly,
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FERRELL v. INTERIOR 11
we disagree with Mr. Ferrell’s contention that the Board
violated his due process rights.
III. CONCLUSION
We have considered Mr. Ferrell’s remaining argu-
ments, including, but not limited to, the arguments raised
in his Memorandum in Lieu of Oral Argument, ECF
No. 42, and find them unpersuasive. For the above rea-
sons, we affirm.
AFFIRMED
COSTS
No costs.
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