NOTE: This disposition is nonprecedential.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

______________________ 

TODD 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 represented by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., 

REGINALD T. BLADES, JR. 

______________________ 

Before LOURIE, TARANTO, and CHEN, Circuit Judges.
2 WEATHERSBEE v. TREASURY

PER 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 employment 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 notification, 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 Decision”). 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, Weathersbee’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 
WEATHERSBEE v. TREASURY 3

“[t]he Internal Revenue Service does not pay me wages to 

listen to [my supervisor’s] assessment of my performance.” Id. at *5. 

On March 4, 2015, Weathersbee’s second-line supervisor 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 Treasury’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 Weathersbee 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 Weathersbee 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).

DISCUSSION

The scope of our review in an appeal from a Board decision 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; 
4 WEATHERSBEE v. TREASURY

(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 demonstrates 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. 
WEATHERSBEE v. TREASURY 5

We agree with the government that substantial evidence 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 substantial 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-
6 WEATHERSBEE v. TREASURY

fied Weathersbee of its termination decision, despite his 

attempts to thwart the notification, and thus its conclusion that Weathersbee failed to meet his burden of proving 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 arguments, but find them unpersuasive. For the foregoing 

reasons, the decision of the Board is affirmed.

AFFIRMED