                  NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                    is not citable as precedent. It is a public record.
 United States Court of Appeals for the Federal Circuit
                                         06-3219

                               THOMAS H. VON MULLER,

                                                        Petitioner,

                                             v.

                              DEPARTMENT OF ENERGY,

                                                        Respondent.

                            __________________________

                              DECIDED: October 10, 2006
                            __________________________


Before LINN and PROST, Circuit Judges, and SARIS, District Judge.∗

PER CURIAM.

       Thomas H. von Muller (“von Muller”) appeals a final decision of the Merit

Systems Protection Board (“Board”), Von Muller v. Department of Energy, No. SE-0752-

03-0402-I-3 (M.S.P.B. Feb. 13, 2005) (“Final Decision”), modifying the administrative

judge’s (“AJ”) initial decision, Von Muller v. Department of Energy, No. SE-0752-03-

0402-I-3 (M.S.P.B. Nov. 18, 2004) (“Initial Decision”), and sustaining von Muller’s

removal by an agency in the Department of Energy from the position of Economic

Development Account Executive.         Because the Board’s decision is not arbitrary,




       ∗
              Honorable Patti B. Saris, District Judge, United State District Court for the
District of Massachusetts, sitting by designation.
capricious, or an abuse of discretion, is in accordance with law and supported by

substantial evidence, and does not otherwise contain reversible error, we affirm.

                                    BACKGROUND

      Von Muller worked as an Economic Development Account Executive at the

Bonneville Power Administration (“Agency”) until his removal on August 1, 2003 based

on four charges of misconduct. The charges were the result of an Agency investigation

into employees’ misuse of computers and electronic mail and included: (1) Conduct

Unbecoming a Federal Employee; (2) Misuse of Government Resources; (3) Failure to

Follow Supervisory Instruction; and (4) Failure to Follow Written Policy and Instructions.

Although the investigation resulted in disciplinary action against 18 employees, only von

Muller and one other employee were removed. Final Decision, slip op. at ¶¶ 2-10.

      Von Muller appealed to the Board, and on November 18, 2004 the AJ issued an

initial decision that sustained the first, second, and fourth charges but found that the

Agency had failed to prove the third charge. Initial Decision, slip op. at 34-38. The AJ

also found that the removal penalty was unreasonably harsh and mitigated it to a 90-

day suspension. Id., slip op. at 53-54.

      On the Agency’s petition for review, the Board determined that the Agency

proved the third charge by a preponderance of the evidence. Final Decision, slip op. at

¶¶ 15-17. The Board also found that the penalty of removal was reasonable. Id., slip

op. at ¶ 23. Accordingly, the Board affirmed the AJ’s initial decision with respect to the

first, second, and fourth charges and modified the decision to sustain the third charge

and the penalty of removal. Id., slip op. at ¶ 1. Von Muller timely appealed. We have

jurisdiction under 5 U.S.C. § 7703(b)(1).




06-3219                                     2
                                     DISCUSSION

      This court must affirm a Board decision unless it is: “(1) arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law; (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 Hayes v. Dep’t of the Navy, 727

F.2d 1535, 1537 (Fed. Cir. 1984). The burden of establishing reversible error in a

Board decision rests upon the petitioner. Harris v. Dep’t of Veterans Affairs, 142 F.3d

1463, 1467 (Fed. Cir. 1998).

      On appeal, von Muller argues that the Board erred in reversing the AJ’s finding

that the Agency failed to prove the third charge because the AJ’s finding was based on

demeanor and credibility determinations. Von Muller also argues that the Board erred

in sustaining the penalty of removal because it failed to consider that he received

disparate treatment.

      The Board’s decision to sustain the third charge was not based on credibility

determinations.   Rather, the Board agreed with the AJ that, though von Muller’s

supervisor instructed him not to talk about “this” with anyone, “it is unclear precisely

what [von Muller’s supervisor] directed the appellant not to talk about”—the

investigation, the conversation, or the details of the conversation. Final Decision, slip

op. at ¶¶ 16-17. However, the board found that under any interpretation, von Muller

failed to comply with the instruction because in five emails over the next several days,

von Muller “expressed the central fact that BPA management, with the help of Cyber

Security was, monitoring his and other employees’ emails” and that no other details of

the investigation were left to divulge.       Id.   “When the demeanor-based deference




06-3219                                   3
requirement is not in play, the [Board] is free to re-weigh the evidence and substitute its

own decision as to the facts or the law commensurate with the substantial evidence

standard.” Haebe v. Dep’t of Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002). Here, the

Board was free to re-weigh the evidence, and its finding that the Agency proved the

third charge is supported by substantial evidence.

       In evaluating the appropriateness of removal, the Board correctly turned to the

non-exhaustive factors outlined in Douglas v. Veterans Administration, 5 M.S.P.R. 280,

306 (1981), to determine if the Agency’s penalty determination was entitled to

deference.   The Board found that disparate treatment—a Douglas factor—was not

present in von Muller’s case because the only other similarly-situated employee was

also removed.    Final Decision, slip op. at ¶ 22.    We need not address that issue,

however, because the Board nevertheless concluded that the Agency failed to consider

other Douglas factors and thus afforded no deference to the Agency’s penalty

determination.   In such a situation, the Board may perform its own analysis of the

reasonableness of the penalty. Langham v. United States Postal Service, 92 M.S.P.R.

268, 272 (2002). Here, the Board noted the nature and seriousness of the conduct, von

Muller’s position interacting with parties outside the Agency, and the reflection such

conduct had on the Agency, and concluded that removal was within the bounds of

reasonableness. That conclusion is supported by substantial evidence. Accordingly,

we affirm.




06-3219                                  4
