Fellhoelter v. Department of Agriculture

United States Court of Appeals for the Federal Circuit

2008-3244

KYLE S. FELLHOELTER,

Petitioner,

v.

DEPARTMENT OF AGRICULTURE,

Respondent.

Margaret Beebe Held, Held Law Firm, of Knoxville, Tennessee, argued for
petitioner.

Allison Kidd-Miller, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent. With
her on the brief were Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant
Director.

Appealed from: Merit Systems Protection Board
 United States Court of Appeals for the Federal Circuit

2008-3244

KYLE S. FELLHOELTER

Petitioner,

v.

DEPARTMENT OF AGRICULTURE,

Respondent.

Petition for review of the Merit Systems Protection Board in
AT0752070626-I-1.

___________________________

DECIDED: June 15, 2009
___________________________

Before MICHEL, Chief Judge, BRYSON, Circuit Judge, and CUDAHY, Senior Circuit
Judge. *

BRYSON, Circuit Judge.

Kyle S. Fellhoelter petitions for review of a decision of the Merit Systems

Protection Board affirming his removal from a supervisory position with the United

States Department of Agriculture (“USDA”). We affirm.

∗ The Honorable Richard D. Cudahy, Senior Circuit Judge, United States Court
of Appeals for the Seventh Circuit, sitting by designation.
 I

Mr. Fellhoelter was an audit manager in a USDA office in Knoxville, Tennessee.

He worked in the Federal Milk Marketing program, a USDA program designed to

stabilize conditions in the market for dairy products and to prevent regional shortages in

the supply of milk. Mr. Fellhoelter was charged with supervising a small staff of field

auditors who periodically examined the sales, production, and inventory of milk handlers

in a region encompassing Tennessee and seven nearby states.

In 2002, Mr. Fellhoelter grew concerned that two regulated entities—Valley Milk

Products LLC (“Valley Milk”) and Maryland & Virginia Milk Producers Cooperative

Association, Inc. (“MD-VA Milk”)—were misrepresenting the grade of milk they had

processed, paying less than the regulated purchase price for raw milk, and claiming

credit for milk supplied by other companies. Mr. Fellhoelter reported his suspicions to

Harold Friedly, Market Administrator for the Appalachian Region, and William Newell,

Chief of the Order Operations Branch in the Dairy Programs Division of the USDA.

Messrs. Friedly and Newell acknowledged that “little [was] wrong with most of the basic

facts” alleged by Mr. Fellhoelter, but they drew a different conclusion from those facts.

They determined that the practices identified by Mr. Fellhoelter were consistent with

federal milk marketing regulations and that any remedial action, if appropriate, was

outside the scope of the USDA’s limited regulatory authority in the area. Mr. Friedly

urged Mr. Fellhoelter not to take any further action, particularly since many of the

documents that formed the basis for Mr. Fellhoelter’s allegations contained confidential

and proprietary information protected by statute.

2008-3244 2
 Dissatisfied with management’s response, Mr. Fellhoelter began pursuing other

avenues to address what he perceived to be fraudulent conduct. In May 2003, Mr.

Fellhoelter filed a report with the USDA’s Office of Inspector General. In that report, he

described the allegedly fraudulent practices of Valley Milk and MD-VA Milk, and he also

alleged fraud and mismanagement by Mr. Friedly. The Office of Inspector General

subsequently declined to initiate an enforcement proceeding, finding that Mr. Newell

had “adequately addressed” Mr. Fellhoelter’s allegations. On July 8, 2005, Mr.

Fellhoelter brought a qui tam action against Valley Milk, MD-VA Milk, and the USDA in

the United States District Court for the Eastern District of Tennessee. The complaint

incorporated much of the substance of Mr. Fellhoelter’s earlier report to the Office of

Inspector General. In addition, it included a claim of unlawful retaliation under the

Whistleblower Protection Act (“WPA”). The qui tam action was later dismissed for

violations of the sealing provisions of the False Claims Act and for failure to allege a

claim involving the payment of government funds.

In mid-2006, while the qui tam action was pending before the district court, Mr.

Friedly recommended closing the Knoxville office and consolidating the regional auditing

group in the regional headquarters in Louisville, Kentucky. Mr. Friedly explained to his

superiors that the dairy industry was in the process of eliminating regional production

facilities and that “[t]he work performed by the Audit Group in the Knoxville field office

[had] changed with the work moving away from Knoxville.” On December 28, 2006, the

Secretary of Agriculture approved the recommendation to close the Knoxville office.

Rather than implementing a reduction in force, Mr. Friedly offered many of the Knoxville

employees, including Mr. Fellhoelter, reassignment to the Louisville office on the same

2008-3244 3
terms and conditions as their current employment. Mr. Fellhoelter declined the

reassignment and was therefore removed from his position as of April 14, 2007.

Mr. Fellhoelter appealed the removal action to the Merit Systems Protection

Board, claiming that the USDA had closed the Knoxville office in retaliation for his

whistleblowing activities. The administrative judge who was assigned to the case

directed the parties to conduct discovery in accordance with the procedures set forth at

5 C.F.R. §§ 1201.71-1201.85. Two weeks after receiving the government’s responses

to his initial discovery requests, Mr. Fellhoelter moved for an order compelling the

production of documents that pertained to his supervisors’ alleged threats of reprisal

against him. The administrative judge denied that motion as untimely and, in the

alternative, as “lacking merit.” Following discovery, the administrative judge decided to

reverse the normal order of proof in whistleblowing cases by holding a hearing on the

USDA’s affirmative defense that the Knoxville office would have been closed (and Mr.

Fellhoelter reassigned) even in the absence of any protected disclosures.

At the conclusion of that hearing, the administrative judge found that the

Knoxville office would have been closed regardless of Mr. Fellhoelter’s whistleblowing

activity and therefore upheld the USDA’s removal decision. The administrative judge

found that the agency had a “strong basis” for its decision to close the Knoxville office.

The evidence, the administrative judge concluded, showed that office closures in the

Dairy Program were “relatively frequent and dependent to a great extent on the financial

resources and expenditures available in a given location.” The administrative judge

found that the agency had shown “the existence of a deteriorating financial situation that

was solved by a reduction in expenditures” through the consolidation of offices, and that

2008-3244 4
at the centralized location in Louisville the agency had access to more support facilities

and better office space, which would “facilitate more efficient audit work.”

The full Board denied review of the administrative judge’s decision. Mr.

Fellhoelter now petitions for review by this court.

II

Mr. Fellhoelter does not disagree that substantial evidence in the record supports

the administrative judge’s ultimate conclusion that the USDA would have directed his

reassignment from Knoxville to Louisville even in the absence of his whistleblowing

activity. Rather, Mr. Fellhoelter’s principal contention is that the record for decision was

incomplete because the administrative judge erroneously precluded the admission of

evidence pertaining to Mr. Friedly’s motive to retaliate against him because of his

protected disclosures. Mr. Fellhoelter challenges approximately 50 evidentiary rulings,

all of which he characterizes as precluding evidence of Mr. Friedly’s motive to retaliate.

The collective effect of those evidentiary rulings, Mr. Fellhoelter argues, was to deprive

him of a meaningful opportunity to present his claim that the Knoxville office was closed

in retaliation for his disclosures. Mr. Fellhoelter therefore seeks a new hearing at which

he can complete the record with evidence excluded by the administrative judge.

A

The WPA prohibits any federal agency from taking, failing to take, or threatening

to take or fail to take, any personnel action because of the disclosure of information by

an employee or applicant for employment that the employee or applicant reasonably

believes to be evidence of a violation of law, rule, or regulation, gross mismanagement

or a waste of funds, or a substantial and specific danger to public health or safety. 5

2008-3244 5
U.S.C. § 2302(b)(8). In order to make out a prima facie case under the WPA, the

employee or applicant must establish that he made a protected disclosure and that the

disclosure was a contributing factor in an adverse action against him. 5 U.S.C.

§ 1221(e)(1). If the employee or applicant makes out a prima facie whistleblower claim,

the agency is given an opportunity to prove, by clear and convincing evidence, that it

would have taken the same personnel action in the absence of the protected disclosure.

5 U.S.C. § 1221(e)(2); see also Marano v. Dep’t of Justice, 2 F.3d 1137, 1141 (Fed. Cir.

1993).

In determining whether the agency would have taken the same personnel action

in the absence of the protected disclosure, the Board considers the following 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 or has

taken similar actions against similarly situated employees who are not whistleblowers.

See Geyer v. Dep’t of Justice, 70 M.S.P.R. 682, 688 (1996), aff'd, 116 F.3d 1497 (Fed.

Cir. 1997); see also Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323-24 (Fed. Cir. 1999)

(approving the Geyer factors). Because the WPA does not mandate any particular

sequence for trying the elements of a whistleblower case, we have tacitly approved of

the Board’s practice, in appropriate cases, of first addressing the agency’s affirmative

defense and then, if necessary, turning to the question whether the petitioner has made

out a prima facie whistleblower claim. See Clark v. Dep’t of the Army, 997 F.2d 1466,

1470-71 (Fed. Cir. 1993); see also Kalil v. Dep’t of Agric., 479 F.3d 821, 824-25 (Fed.

2008-3244 6
Cir. 2007); Greenspan v. Dep’t of Veterans Affairs, 464 F.3d 1297, 1303-04 (Fed. Cir.

2006).

In this case, the administrative judge decided it would be most efficient to hear

evidence as to the agency’s affirmative defense first and then, if necessary, to hear

evidence as to the other elements of the claim. Because the administrative judge

limited the hearing to the agency’s affirmative defense, he repeatedly sustained the

government’s objections to the introduction of evidence going to whether there was a

prima facie case of whistleblowing.

The factual dispute between the parties centered on whether Mr. Fellhoelter’s

supervisors would have closed the Knoxville office despite his whistleblowing activity.

One of the factors for the administrative judge to consider in ruling on the government’s

affirmative defense is the strength of any retaliatory motive on the part of the officials

who were involved in the decision in question. See Carr, 185 F.3d at 1323-24.

Because direct evidence of a deciding official’s retaliatory motive is rare, petitioners are

entitled to rely on circumstantial evidence giving rise to an inference of impermissible

intent. See Webster v. Dep’t of Army, 911 F.2d 679, 689-90 (Fed. Cir. 1990); see also

Sheehan v. Dep’t of Navy, 240 F.3d 1009, 1014 (Fed. Cir. 2001). In some cases,

evidence of retaliatory motive is also relevant to the petitioner’s prima facie case; for

example, evidence of an employee’s assertions of misconduct by a supervisor can be

relevant to whether the employee has made a protected disclosure and also whether

the supervisor has a strong motivation to retaliate.

Mr. Fellhoelter argues that the administrative judge improperly rejected all

evidence going to the reasonableness of his belief in the mismanagement of the Milk

2008-3244 7
Order; in his view, even though that evidence was relevant to his prima facie case, it

also tended to undermine the government’s affirmative defense and therefore should

have been admitted. We agree with Mr. Fellhoelter that the administrative judge was

not free to disregard particular evidence that was relevant to a material issue merely

because it was also relevant to a separate issue that was not contested at the hearing.

Thus, it would have been improper for the administrative judge to exclude evidence

solely on the ground that it related to the reasonableness of Mr. Fellhoelter’s belief in

the mismanagement of the Milk Order. However, Mr. Fellhoelter has not identified any

exclusion of evidence that was predicated on that rationale. As we discuss in detail

below, with respect to many of the evidentiary rulings at issue in this case the

administrative judge exercised sound discretion by excluding evidence on the grounds

that it was nonprobative, cumulative, or likely to unduly delay the proceedings. With

respect to other rulings, we conclude that the exclusion of evidence, even if erroneous,

was not prejudicial and thus does not warrant a remand for a new hearing.

B

Mr. Fellhoelter contends that the administrative judge erroneously excluded

evidence of Mr. Friedly’s knowledge that Valley Milk’s practices were fraudulent. During

the hearing, the government objected to the introduction of testimony about how Mr.

Fellhoelter first learned of the alleged fraud. Counsel for Mr. Fellhoelter argued that her

questioning would be directed to “the documentation that Mr. Fellhoelter provided to Mr.

Friedly and when [he] provided it, and how it was obtained.” Mr. Fellhoelter

characterizes the administrative judge’s rejection of that rationale as a refusal to hear

evidence of Mr. Friedly’s “knowledge that the law had been violated.”

2008-3244 8
 While Mr. Fellhoelter’s investigation into the alleged fraud may have been

relevant to the reasonableness of his disclosure, we agree with the administrative judge

that the evidence was not relevant to the government’s affirmative defense. In

particular, we disagree with counsel’s suggestion that Mr. Friedly’s general awareness

of the regulated entities’ conduct necessarily gave rise to an inference that he knew the

conduct was unlawful. Mr. Friedly and the USDA never disavowed knowledge of Mr.

Fellhoelter’s reports; instead, they maintained throughout that the reported activities

either were not unlawful or were outside the jurisdiction of the USDA. Because Mr.

Fellhoelter did not purport to introduce evidence that Mr. Friedly’s stated position was

contrary to his subjective beliefs, we sustain the administrative judge’s ruling on the

ground that the testimony in question was not probative of the factual issues to be

resolved at the hearing.

C

Mr. Fellhoelter next complains that the administrative judge denied him the

opportunity to submit “documentation of Mr. Friedly’s involvement in the fraud.” At the

hearing, the administrative judge declined to hear testimony concerning Mr. Fellhoelter’s

efforts to collect certain documents from Valley Milk that were later used to support his

allegations of fraud. On appeal, Mr. Fellhoelter characterizes that decision as an

exclusion of documents inculpating Mr. Friedly in the fraud.

The administrative judge did not abuse his discretion in ruling that the

documentation of Valley Milk’s practices was not particularly relevant to whether the

Knoxville office would have been closed in the absence of Mr. Fellhoelter’s protected

disclosures. While any documents that evidenced Mr. Friedly’s involvement in the

2008-3244 9
alleged fraud would have been highly material to that issue, Mr. Fellhoelter has never

suggested that any of the proffered materials would have revealed Mr. Friedly’s

complicity or that the testifying witness had personal knowledge of the incriminating

nature of the documents. We therefore uphold the administrative judge’s ruling

excluding evidence of Mr. Fellhoelter’s investigation into the alleged fraud.

D

Mr. Fellhoelter also challenges the exclusion of testimony that Mr. Friedly

personally authorized the practices adopted by Valley Milk and MD-VA Milk. Rick Holt,

an audit manager with the USDA, was asked at the hearing whether the President of

Valley Milk had admitted paying less than the regulatory price for received milk. That

question drew a relevance objection from the government. Counsel for Mr. Fellhoelter

responded that she would establish Mr. Friedly’s approval of Valley Milk’s practices

through an affidavit filed by Valley Milk’s president in the qui tam action before the

district court. Mr. Fellhoelter argues that the administrative judge’s decision to sustain

the objection should be understood as precluding Mr. Holt from testifying that Mr.

Friedly had “personally approved the illegal practices of Valley Milk.”

Proof that Valley Milk engaged in practices that Mr. Fellhoelter considered illegal

would have been probative of the reasonableness of Mr. Fellhoelter’s belief in the

existence of a fraud. However, that evidence was only tangentially related to the

question whether the consolidation of the Knoxville and Louisville office was inevitable.

Moreover, there was no evidence that Mr. Holt had personal knowledge of either the

existence of the affidavit or the conversation in which Mr. Friedly allegedly assured

2008-3244 10
Valley Milk’s executives that their practices were legal. Thus, we find no error in the

administrative judge’s decision with respect to the question posed to Mr. Holt.

E

Mr. Fellhoelter next argues that the administrative judge improperly excluded

evidence that Mr. Friedly had retaliated against Michael Baker, another Knoxville office

employee who had made similar allegations against Valley Milk and MD-VA Milk.

According to Mr. Fellhoelter, Mr. Friedly’s reaction to the disclosures by another

employee would have provided invaluable insight into his motivation for closing the

Knoxville office.

The relevance of that evidence, however, turned on the nature of Mr. Baker’s

disclosures, which was not apparent from the record, as the administrative judge noted.

Moreover, Mr. Baker failed to appear at the hearing. Although the administrative judge

issued a subpoena to compel his appearance, the record does not reflect that Mr.

Fellhoelter effected service of that subpoena. Given the unavailability of Mr. Baker, the

administrative judge did not err in concluding that developing a full picture of Mr. Baker’s

experience in the Knoxville office through third-party evidence would have required

substantial trial time and would have had little probative value.

F

Mr. Fellhoelter also argues that the administrative judge erred in excluding

evidence of other civil and administrative proceedings involving allegations of

misconduct against Mr. Friedly. Mr. Fellhoelter argues that the development of the

record on those issues was critical to proving Mr. Friedly’s retaliatory motive.

2008-3244 11
 Evidence of other unspecified, but apparently unrelated, claims of misconduct

could not, of course, have been probative of Mr. Friedly’s motives if those claims were

unsubstantiated, and Mr. Fellhoelter did not suggest that he could prove that those

allegations were true. Even if the claims of unrelated misconduct were well founded,

evidence of that sort would not have provided significant support to the contention that

the USDA’s Knoxville office was closed in retaliation for Mr. Fellhoelter’s whistleblowing.

Accordingly, we conclude that the administrative judge did not err in barring Mr.

Fellhoelter from conducting a collateral inquiry into claims of misconduct by Mr. Friedly.

G

According to Mr. Fellhoelter, the administrative judge improperly excluded

testimony of “Mr. Friedly’s attitude toward Mr. Fellhoelter’s initial report of fraud.” Mr.

Fellhoelter calls our attention to the point in the hearing when Mr. Holt was asked to

describe Mr. Friedly’s reaction upon learning of the alleged fraud. From our review of

the hearing transcript, it appears the administrative judge overruled the government’s

objection to that testimony and permitted Mr. Holt to answer the question. Thus, there

is no basis for the assertion that Mr. Fellhoelter was precluded from inquiring into Mr.

Friedly’s response to the whistleblowing activity.

Mr. Fellhoelter also claims to have been prevented from questioning Mr. Friedly

“regarding his efforts to remove Mr. Fellhoelter from access to information that would

show Mr. Friedly’s personal involvement.” As support for that assertion, Mr. Fellhoelter

cites a portion of the hearing transcript in which Mr. Newell (not Mr. Friedly) was asked

about the USDA’s obligation to make its employees available to testify in civil

2008-3244 12
proceedings. We fail to see how that testimony would have been probative of Mr.

Fellhoelter’s access to documents that inculpated Mr. Friedly.

III

We next address the various evidentiary rulings that, even if erroneous, were not

sufficiently prejudicial to warrant reversal and a new hearing. Much of the evidence at

issue in this appeal was duplicative of other testimonial and documentary evidence that

was admitted into the record over the course of the proceedings. Because that

evidence went to issues as to which there was ample other evidence or to issues that

were not disputed at the hearing, Mr. Fellhoelter cannot show that he was prejudiced by

the challenged rulings. See Curtin v. Office of Pers. Mgmt., 846 F.2d 1373, 1379 (Fed.

Cir. 1988); see also Chambers v. Dep’t of the Interior, 515 F.3d 1362, 1371 (Fed. Cir.

2008); Barrett v. Soc. Sec. Admin., 309 F.3d 781,786 (Fed. Cir. 2002).

For example, Mr. Fellhoelter contends that the administrative judge erred in

excluding evidence that Mr. Friedly had a statutory duty to disclose regulatory

infractions by Valley Milk and MD-VA Milk. However, the administrative judge received

the relevant portions of the USDA’s internal manuals describing an auditor’s job

responsibilities, which refer to the duty to “report fraud, illegal acts, violations of

provisions of contracts or grant agreements, and abuse directly to parties external to the

audited entity.” Moreover, when Mr. Newell was asked to describe the types of

penalties imposed on employees who knowingly fail to disclose fraudulent practices, he

disclaimed knowledge of any specific criminal or statutory penalties, but he noted that

the employee could be subject to “disciplinary action for failure to carry out duties and

reporting to the supervisor.” Finally, Mr. Friedly himself acknowledged that, as a USDA

2008-3244 13
employee he had “a duty to report violations of the law to the appropriate authorities.”

Thus, the administrative judge’s exclusion of some testimony relating to the auditors’

obligation to disclose illegal activities was harmless because the precluded testimony

was cumulative of other evidence in the record.

We likewise reject the argument that Mr. Fellhoelter was prejudiced by the

administrative judge’s decision to exclude the documents he submitted to the

Department of Justice and the USDA Office of Inspector General. According to Mr.

Fellhoelter, those reports would have shown that Mr. Friedly was the subject of Mr.

Fellhoelter’s allegations of fraud and mismanagement. At the hearing, however, Mr.

Fellhoelter was given substantial leeway as he explained how he had publicly implicated

Mr. Friedly in the alleged fraud. Several witnesses attested that Mr. Fellhoelter “took on

the boss” and “made a complaint against Mr. Friedly to the Office of Inspector General.”

The administrative record also contains a number of e-mails from Mr. Fellhoelter to

senior members of the USDA alleging “management malfeasance including gross

government waste.” In its post-hearing submissions to the administrative judge, the

government conceded that, by June 2003, Mr. Fellhoelter had “amended his allegations

to include his belief that USDA management were also at fault for not reacting to his

concerns.” Moreover, evidence in the record shows that Mr. Friedly was aware of the

allegations Mr. Fellhoelter had made against him in his report to the Office of Inspector

General and in his qui tam action in the Eastern District of Tennessee. Thus, even

assuming that the administrative judge erred in denying admission of Mr. Fellhoelter’s

reports to the Office of Inspector General and the Department of Justice, that ruling was

not prejudicial.

2008-3244 14
 Mr. Fellhoelter claims that he was prohibited from questioning Mr. Friedly

“regarding his efforts to remove Mr. Fellhoelter from access to information that would

show Mr. Friedly’s personal involvement.” As we concluded above, the citations in Mr.

Fellhoelter’s brief do not support the contention that Mr. Fellhoelter was precluded from

introducing that testimony. With respect to Mr. Fellhoelter’s related claim that he was

“removed from access” to any information relevant to his claims, he admitted that he

copied more than 1500 agency documents that formed the basis for his qui tam action

and his report to the Office of Inspector General. To the extent Mr. Fellhoelter suggests

that Mr. Friedly made an effort to limit his access to documentation of the alleged fraud,

Mr. Friedly acknowledged instructing Mr. Fellhoelter to respect the confidentiality of the

documents in the possession of the USDA and to not take his grievances outside the

agency. The evidence further showed that shortly after the qui tam action was filed, Mr.

Friedly barred Mr. Fellhoelter from participating in the audits of the regulated entities

that were named as defendants in the action. In light of that evidence, the testimony

sought by Mr. Fellhoelter would have been cumulative; any error by the administrative

judge in restricting his efforts to offer evidence on that issue was thus harmless.

Mr. Fellhoelter complains that the administrative judge improperly refused to

permit him to impeach Mr. Newell with an affidavit that Mr. Newell submitted in the qui

tam action. That argument was first raised before us in Mr. Fellhoelter’s reply brief, and

it is therefore not properly before us. See United States v. Ford Motor Co., 463 F.3d

1267, 1276-77 (Fed. Cir. 2006). In any event, we find no merit in the claim. Counsel for

Mr. Fellhoelter sought to use the affidavit to impeach Mr. Newell’s statement that he did

not “approve the organizational changes that involved the closure of the Knoxville

2008-3244 15
office.” Mr. Newell’s testimony that he participated in the decision to consolidate the

Knoxville and Louisville offices was corroborated by two witnesses who detailed the

extent of Mr. Newell’s involvement in the decisional process. Ms. Taylor, for example,

recalled that she and Mr. Newell played an advisory role in the discussions leading up to

the closure of the Knoxville office. She emphasized, however, that Mr. Friedly was the

only individual with the authority to consolidate operations in Louisville. Mr. Friedly

concurred that Mr. Newell was “aware of the situation” and provided some “advice and

expertise” but that he did not take part in the actual decision to effect the reorganization.

Thus, even if Mr. Fellhoelter’s counsel had succeeded in impeaching Mr. Newell’s

testimony, it is unlikely that the impeachment would have affected the administrative

judge’s decision to credit the statements of Ms. Taylor and Mr. Friedly as to who

participated in the decision to close the Knoxville office. Moreover, it is not clear why it

would have been in Mr. Fellhoelter’s interest to impeach Mr. Newell’s testimony that he

was not responsible for the closure decision. Mr. Fellhoelter has thus not shown that

the restriction of his effort to impeach Mr. Newell’s testimony prejudiced him.

Finally, Mr. Fellhoelter argues that the administrative judge committed reversible

error by excluding evidence of Mr. Friedly’s “reaction to Mr. Fellhoelter’s report to

another branch of USDA.” The administrative judge sustained an initial objection to Mr.

Friedly testifying about his impression of Mr. Fellhoelter’s disclosures to the Assistant to

the Deputy Director of the USDA. However, counsel for Mr. Fellhoelter persisted in her

questioning without drawing any further objections from the government. Mr. Friedly

eventually admitted instructing Mr. Fellhoelter not to convey his suspicions to anyone

within the agency, including the USDA Compliance Officer and the Assistant to the

2008-3244 16
Deputy Director of the USDA. The administrative judge’s ruling on the government’s

objection, even if erroneous, was therefore harmless.

IV

As an alternative basis for a remand and rehearing, Mr. Fellhoelter asserts that

the administrative judge erred in denying his motion to compel the production of

documents by the USDA. Mr. Fellhoelter acknowledges that the motion to compel was

not filed “within 10 days of the date of service of objections,” as required by 5 C.F.R.

§ 1201.73(d)(4), and that he did not attempt to show good cause for the delay. He

nonetheless insists that the untimeliness of the motion did not justify the administrative

judge’s decision to deny it. Citing the Board’s decision in White v. Government Printing

Office, 108 M.S.P.R. 355 (2008), Mr. Fellhoelter argues that an administrative judge is

required to reach the merits of a motion to compel if the requested discovery is “highly

relevant” to the petitioner’s whistleblower claim.

Mr. Fellhoelter overlooks that in White, the Board found that the administrative

judge had erred as a matter of law in setting a time period for filing motions to compel

that was more restrictive than the period provided by 5 C.F.R. § 1201.73. The Board

concluded that a remand was appropriate because the petitioner had been prejudiced

by the erroneous ruling: The administrative judge had refused to entertain a motion that

was both timely under the regulation and was directed to materials “reasonably

calculated to lead to the discovery of admissible evidence.” White, 108 M.S.P.R. at

359-60. The materiality of the excluded discovery materials was merely one factor to be

considered in crafting an appropriate remedy for the administrative judge’s erroneous

legal conclusion that the discovery deadlines set forth in 5 C.F.R. § 1201.73 were not

2008-3244 17
binding. Nowhere did the Board suggest that a violation of discovery deadlines may be

overlooked as long as the requested discovery was “highly relevant” to the petitioner’s

claim. Thus, the Board’s decision in White has no bearing on the timeliness of Mr.

Fellhoelter’s motion to compel.

Having conceded the absence of good cause for the late filing, Mr. Fellhoelter

cannot show that the administrative judge abused his discretion in denying the motion to

compel as untimely. See, e.g., Jolley v. Dep’t of Homeland Sec.,105 M.S.P.R. 104, 112

n.5 (2007); Gibb v. Dep’t of the Treasury, 88 M.S.P.R. 135, 146 (2001); Ludlum v. Dep’t

of Justice, 87 M.S.P.R. 56, 59 (2000); Golden v. U.S. Postal Serv., 60 M.S.P.R. 268,

271 (1994). Accordingly, we have no reason to reach either the merits of Mr.

Fellhoelter’s motion or the issue whether the alleged error was harmless.

The two-day hearing before the administrative judge was vigorously contested.

In the course of the proceedings, the administrative judge was repeatedly called upon to

make rulings regarding the pertinence of particular evidence to the issues to be

resolved at the evidentiary hearing. After close examination of Mr. Fellhoelter’s

numerous claims of error, we are persuaded that although the administrative judge

played an active role in controlling the proceedings, he conducted the hearing fairly. To

the extent that certain of the administrative judge’s rulings may have been unduly

restrictive, those rulings have not been shown to be prejudicial. We therefore uphold

the Board’s ruling rejecting Mr. Fellhoelter’s whistleblower claim.

Each party shall bear its own costs for this appeal.

AFFIRMED.

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