Higgins v. DVA ( 2020 )

Case: 18-2352 Document: 60 Page: 1 Filed: 04/17/2020
United States Court of Appeals
for the Federal Circuit
______________________
SEAN C. HIGGINS,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2018-2352
______________________
Petition for review of the Merit Systems Protection
Board in Nos. AT-0752-17-0625-I-2, AT-1221-18-0019-W-2.
______________________
Decided: April 17, 2020
______________________
JOHN WHITTY, Government Accountability Project,
Washington, DC, argued for petitioner. Also represented
by STEPHANI AYERS, Law Office of S.L. Ayers, Medford, OR.
ASHLEY AKERS, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by
JOSEPH H. HUNT, ALLISON KIDD-MILLER, ROBERT EDWARD
KIRSCHMAN, JR.
______________________
Before LOURIE, TARANTO, and STOLL, Circuit Judges.
Case: 18-2352 Document: 60 Page: 2 Filed: 04/17/2020
2 HIGGINS v. DVA
STOLL, Circuit Judge.
Petitioner Sean Higgins appeals the Merit Systems
Protection Board’s decision denying corrective action for
his suspension and affirming his removal by the Depart-
ment of Veterans Affairs from his role as a Supply Techni-
cian at the Memphis Veterans Administration Medical
Center due to misconduct. Mr. Higgins argues that the
Board improperly discounted his medical evidence of post-
traumatic stress disorder (PTSD) in assessing the reason-
ableness of his suspension and removal, and that the Ad-
ministrative Judge abused his discretion by excluding
certain witness testimony relevant to institutional motive
to retaliate. We discern no reversible error and affirm the
Board’s decision.
BACKGROUND
Mr. Higgins began his employment with the Memphis
Veterans Administration Medical Center (VAMC) in 2007.
Throughout his employment, Mr. Higgins reported unlaw-
ful activity at the VAMC ranging from misuse of agency
letterhead to improper disposal of biohazardous material.
As a result, Mr. Higgins had a reputation throughout the
VAMC for being a whistleblower. Mr. Higgins also had a
history of conflict with his supervisors and coworkers.
In 2016, a psychologist diagnosed Mr. Higgins with
“experiencing significant anxiety and meet[ing] criteria for
PTSD, chronic.” J.A. 102. The psychologist found that
Mr. Higgins’s “symptoms of anxiety began in 2009.”
J.A. 101. Mr. Higgins’s PTSD symptoms included “chronic
anxiety and hypervigilance, irritability, fear of harm, [and]
mistrust of others,” and his psychologist noted “no expected
date of remission, full or partial.” J.A. 102. Because
Mr. Higgins “continue[d] to experience significant anxiety
at work and ongoing conflict,” his psychologist “conclude[d]
that Mr. Higgins cannot work, even with restrictions, and
this is permanent.” Id.
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HIGGINS v. DVA 3
In March 2017, the VAMC suspended Mr. Higgins for
using “disrespectful language toward a supervisor.”
J.A. 110. Mr. Higgins had used profanity during a Decem-
ber 2016 interaction with his immediate supervisor,
Mr. Pointdexter, during an introduction to Mr. Higgins’s
new second-level supervisor, Mr. Ambrose. Upset about a
pay issue, Mr. Higgins greeted the pair with profanities,
and continued using profane language after Mr. Pointdex-
ter asked him to refrain from doing so. Mr. Pointdexter
proposed a fourteen-day suspension as a consequence of
that interaction, and included an analysis of the factors set
out in Douglas v. Veterans Administration, 5 M.S.P.B. 313
(1981). 1 Mr. Kehus, the Interim Associate Medical Direc-
tor of the VAMC, sustained Mr. Higgins’s suspension be-
cause it was “the third incident of a similar type” and he
“did not get the impression that [Mr. Higgins] accepted any
responsibility or would change [his] behavior.” J.A. 278
(Tr. 257:10–16). In evaluating Mr. Higgins’s proposed sus-
pension, Mr. Kehus considered and agreed with
Mr. Pointdexter’s Douglas analysis. Later, during an oral
hearing on the merits before the Administrative Judge,
Mr. Kehus testified that he viewed Mr. Higgins’s whistle-
blower status and PTSD as mitigating factors in determin-
ing the reasonableness of Mr. Higgins’s suspension, and
that those mitigating factors motivated Mr. Kehus to offer
Mr. Higgins a “paper suspension” without loss of pay, ra-
ther than an unpaid suspension. J.A. 274–76 (Tr. 253:12–
255:18).
In June 2017, the VAMC removed Mr. Higgins based
on charges of disruptive behavior and use of profane lan-
guage. Mr. Reesman, the official proposing Mr. Higgins’s
removal, identified three incidents supporting removal.
1 Douglas sets forth twelve factors relevant to deter-
mining whether an adverse agency action is reasonable.
5 M.S.P.B. at 331–32.
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4 HIGGINS v. DVA
First, in February 2017, a witness observed Mr. Hig-
gins leaving a meeting with VA management officials, in-
cluding Mr. Kehus, at which point Mr. Higgins stated,
“‘remember I know where you live’ or words to that effect.”
J.A. 123. After being informed of Mr. Higgins’s statement,
Mr. Kehus contacted the VA Police. Mr. Kehus testified
that as a result of Mr. Higgins’s behavior, people felt un-
safe after the meeting.
Second, during a March 2017 meeting at the VAMC’s
Equal Employment Opportunity office, Mr. Higgins ap-
peared very upset and made threatening and profane state-
ments that caused a witness to contact the VA Police to
request their presence in the area. Witnesses heard Mr.
Higgins state that he was “tired of them messing with me,”
“I am ready to go to jail,” “Do I have to put somebody in the
ground for them to leave me alone,” “Do I have to put a [.]45
to the Director’s head,” and “[S]omebody is going to pay.”
Id. The VAMC’s Chief of Police considered Mr. Higgins’s
statements a valid threat against the Director and recom-
mended that the Director wear a bulletproof vest and re-
ceive a police escort to and from his car each day. J.A. 147
(Tr. 152:14–153:9). Fearing for his life, the Director ac-
cepted the police escort and a bulletproof vest from the VA
Police. J.A. 230–31 (Tr. 156:9–157:6). But because the
vest provided by the VA Police would not stop a .45-caliber
round, the Director purchased a more protective vest at his
own expense and wore it daily for approximately three
months until he moved out of state. J.A. 230–33
(Tr. 156:9–159:6). As a result of this experience, the Direc-
tor successfully filed a workers’ compensation claim for
PTSD. J.A. 231 (Tr. 157:7–22).
Third, in April 2017, Mr. Higgins loudly confronted an-
other VAMC employee who was escorting a veteran’s fam-
ily to the morgue after the employee had greeted
Mr. Higgins by his first name. Mr. Higgins stepped toward
the employee, and stated, in a raised tone, “Who gives you
the right to call me by my first name, you need to address
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HIGGINS v. DVA 5
me by Mr. Higgins.” J.A. 123. After a member of the vet-
eran’s family stepped between the employee and Mr. Hig-
gins, Mr. Higgins did not approach further. J.A. 155
(Tr. 222:5–14). The employee testified during the hearing
that Mr. Higgins’s actions created a hostile and uncomfort-
able situation and made her very nervous. J.A. 154
(Tr. 218:8–219:2). She also testified that management and
employees at the VAMC were afraid of Mr. Higgins. Id.
Mr. Reesman’s written Douglas factor analysis accom-
panying his proposal to remove Mr. Higgins addressed
each Douglas factor. For example, Mr. Reesman noted that
these incidents “are serious offenses” in that “[t]he com-
ments made by the employee and the manner in which he
made them have caused fellow employees, management of-
ficials and visitors to the VAMC to become frightened and
apprehensive.” J.A. 111. Mr. Reesman identified “mitigat-
ing factors, such as, ongoing work tension, [and] the em-
ployee[’s] personal and professional conflict with
management.” J.A. 113. But his written analysis did not
even mention Mr. Higgins’s PTSD. J.A. 111–13. Mr. Rees-
man noted that he “considered alternative sanctions but
concluded that a removal is the appropriate penalty in this
instance mainly due to the nature and seriousness of the
offenses along with the employee’s past disciplinary rec-
ord.” J.A. 113. Mr. Reesman did not testify at the hearing
on the merits of Mr. Higgins’s case. Indeed, the Adminis-
trative Judge’s prehearing order summarily precluded
Mr. Reesman’s testimony as “irrelevant and/or redun-
dant.” J.A. 108.
As the VAMC’s Director, Mr. Dunning was the official
who authorized Mr. Higgins’s removal. He had served in
that role for approximately one month when he decided to
remove Mr. Higgins. Mr. Dunning testified that he relied
on Mr. Reesman’s Douglas factor analysis and that it was
attached as part of his own written analysis. He testified
that he also considered Mr. Higgins’s PTSD as part of his
analysis, but that ultimately, he concluded that the
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6 HIGGINS v. DVA
mitigating circumstances were not sufficient to offset the
seriousness of the incidents underlying the charges, which
included threatening others. See J.A. 138 (Tr. 116:16–
117:4); J.A. 142–43 (Tr. 131:11–132:12, 134:7–10). Ac-
cording to the terse, two-sentence summary that Mr. Dun-
ning himself wrote, Mr. Dunning determined that removal
was warranted due to Mr. Higgins’s “[s]ustained pattern of
disruptive behavior consisting of profane language, intimi-
dating actions, and threatening behaviors,” and because
“[p]revious actions to correct [Mr. Higgins’s] behavior have
not been successful.” J.A. 114.
Mr. Higgins appealed the VAMC’s suspension and re-
moval decisions to the Board, which consolidated Mr. Hig-
gins’s appeals, denied corrective action with respect to
Mr. Higgins’s suspension, and affirmed the agency’s re-
moval decision. Considering Mr. Higgins’s suspension, the
Administrative Judge noted prior decisions in which “inso-
lent disrespect toward a supervisor warrant[ed] removal
when coupled with past, similar misconduct.” Higgins
v. Dep’t of Veterans Affairs, No. AT-1221-18-0019-W-2,
2018 MSPB LEXIS 2040, at *14 (M.S.P.B. June 7, 2018)
(Decision) (first citing Richard v. Dep’t of the Air Force,
43 M.S.P.R. 303, 309 (1990), aff’d, 918 F.2d 185 (Fed. Cir.
1990); then citing Carson v. Veterans Admin., 33 M.S.P.R.
666, 669 (1987)). The Administrative Judge determined
that the agency’s suspension of Mr. Higgins was reasona-
ble given that Mr. Higgins had previously been disciplined
for similar misconduct and “did not meaningfully deny us-
ing the language charged” in the context of meeting his new
second-level supervisor. Id. at *13–14. The Administra-
tive Judge also concluded that Mr. Higgins failed to estab-
lish a whistleblower defense because he failed to establish
an institutional motive to retaliate. Id. at *15–16. The Ad-
ministrative Judge accordingly declined to order corrective
action with respect to Mr. Higgins’s suspension. Id. at *17.
Regarding Mr. Higgins’s removal, the Administrative
Judge concluded that the agency proved its disruptive
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HIGGINS v. DVA 7
behavior and use of profane language charges and a nexus
between the charges and the efficiency of service. Id.
at *21–29, *42–43. He also determined that the agency
had considered and balanced the relevant Douglas factors,
including mitigating factors such as Mr. Higgins’s PTSD.
Id. at *44–48. The Administrative Judge found that the
“mitigating factors could not overcome the extreme serious-
ness of the charges.” Id. at *45. In so finding, he empha-
sized Mr. Dunning’s statements that “the safety of
Memphis VAMC employees is his top priority,” that allow-
ing Mr. Higgins to stay at the VAMC would not be con-
sistent with that priority, and that Mr. Higgins’s “.45 to the
Director’s head” remark standing alone would justify re-
moval. Id. The Administrative Judge also agreed with
Mr. Dunning’s “determination that the sustained charges
are extremely serious, especially in light of the plague of
workplace violence which afflicts our nation.” Id. at *48.
Balancing the seriousness of the charges with the other
Douglas factors, the Administrative Judge determined that
the penalty of removal was “within the range of reasona-
bleness” and promoted “the efficiency of the service.” Id.
The Administrative Judge found that Mr. Higgins had
established a prima facie whistleblower retaliation de-
fense. Id. at *30–31. Examining the Carr factors, however,
the Administrative Judge determined that the agency’s ev-
idence was strong, Mr. Higgins had failed to prove a strong
institutional motive to retaliate, and neither party had pre-
sented relevant evidence of agency actions taken against
similarly-situated employees. Id. at *31–33; see also Carr
v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999).
The Administrative Judge therefore concluded that the
agency would have removed Mr. Higgins even in the ab-
sence of his protected whistleblowing activity and affirmed
the agency’s removal decision. Decision, 2018 MSPB
LEXIS 2040, at *33–34. The Administrative Judge’s initial
decision became the final decision of the Board. Mr. Hig-
gins appeals.
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8 HIGGINS v. DVA
DISCUSSION
On appeal, Mr. Higgins asserts that the Board improp-
erly discounted his medical evidence of PTSD in assessing
the reasonableness of the agency’s penalties of suspension
and removal under Douglas. He further argues that the
Administrative Judge erred by excluding the testimony of
certain witnesses regarding an agency motive to retaliate
against Mr. Higgins due to his whistleblower disclosures.
I
As a threshold matter, we hold that we have jurisdic-
tion over Mr. Higgins’s appeal under 28 U.S.C.
§ 1295(a)(9). Citing Mr. Higgins’s original Form 10 State-
ment Concerning Discrimination, which did not abandon
Mr. Higgins’s discrimination claims, the Government ar-
gues that we do not have jurisdiction over this appeal be-
cause it is a “mixed” case involving an MSPB appeal of a
personnel action and an allegation that the personnel ac-
tion was based on discrimination. Appellee’s Br. 22–24
(citing Diggs v. Dep’t of Hous. & Urban Dev., 670 F.3d 1353,
1355 (Fed. Cir. 2011)). “[I]n mixed cases . . . in which the
employee (or former employee) complains of serious ad-
verse action prompted, in whole or in part, by the employ-
ing agency’s violation of federal discrimination laws, the
district court is the proper forum for review.” Perry v. Merit
Sys. Prot. Bd., 137 S. Ct. 1975, 1988 (2017). Mr. Higgins
filed an amended Form 10 abandoning his discrimination
claims with his reply. Statement Concerning Discrimina-
tion, Higgins v. Dep’t of Veterans Affairs, No. 18-2352
(Fed. Cir. July 31, 2019), ECF No. 42; see also Reply 20.
Because Mr. Higgins’s amended Form 10 abandons all dis-
crimination claims, we have jurisdiction over his appeal.
II
We will uphold the Board’s decision unless it is “(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures
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HIGGINS v. DVA 9
required by law, rule, or regulation having been followed;
or (3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c). Substantial evidence is “such relevant evidence
as a reasonable mind might accept as adequate to support
a conclusion.” Shapiro v. Social Sec. Admin., 800 F.3d
1332, 1336 (Fed. Cir. 2015) (quoting Abrams v. Soc. Sec.
Admin., 703 F.3d 538, 542 (Fed. Cir. 2012)).
To take adverse action against an employee, an agency
must (1) “establish by preponderant evidence that the
charged conduct occurred,” (2) “show a nexus between that
conduct and the efficiency of the service,” and (3) “demon-
strate that the penalty imposed was reasonable in light of
the relevant factors set forth in Douglas v. Veterans Ad-
min[istration].” Malloy v. U.S. Postal Serv., 578 F.3d 1351,
1356 (Fed. Cir. 2009) (first citing 5 U.S.C. § 7701(c)(1)(B);
then citing id. § 7513(a); and then citing Douglas,
5 M.S.P.R. at 307–08).
The Whistleblower Protection Act prohibits retaliation
against an employee for whistleblowing. See 5 U.S.C.
§ 2302(b)(8). A burden shifting framework applies to an
employee’s whistleblowing defense against an adverse
agency personnel action, such as a suspension or removal.
See Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1367
(Fed. Cir. 2012). First, an agency must prove its case for
the adverse personnel action by a preponderance of the ev-
idence. Id. The burden then shifts to the employee to
“prove by a preponderance of the evidence that he or she
made a protected disclosure under § 2302(b)(8) that was a
contributing factor to the” personnel action. Id. “If the em-
ployee establishes this prima facie case of reprisal for whis-
tleblowing, the burden of persuasion shifts to the agency to
show by clear and convincing evidence that it would have
taken ‘the same personnel action in the absence of such dis-
closure.’” Id. (italics omitted) (quoting 5 U.S.C. § 1221(e)).
To determine whether an agency has met its burden to
prove that it would have taken the same action regardless
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10 HIGGINS v. DVA
of any whistleblower disclosures, we apply the Carr factors,
evaluating:
[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 deci-
sion; and [3] any evidence that the agency takes
similar actions against employees who are not
whistleblowers but who are otherwise similarly sit-
uated.
Carr, 185 F.3d at 1323 (citation omitted).
III
A
Mr. Higgins challenges the Board’s conclusion that the
agency’s suspension and removal actions were reasonable,
arguing that the Board improperly discounted medical ev-
idence of his PTSD. 2 Specifically, Mr. Higgins asserts that
2 Mr. Higgins’s opening brief raises as separate is-
sues the Board’s insufficient consideration of his PTSD in
affirming his suspension and his removal. Appellant’s
Br. 1. But Mr. Higgins’s opening brief does not separately
argue that the Board’s analysis of his suspension improp-
erly discounted his PTSD. See Appellant’s Br. 26–33. In-
deed, Mr. Higgins’s arguments that the Board’s
consideration of his PTSD was inadequate cite only the
Board’s decision as a whole and the portions of the Board’s
decision discussing removal. See id. Because Mr. Higgins
does not separately argue that the Board improperly dis-
counted his PTSD in analyzing his suspension, we do not
consider that argument as a separate issue from whether
the Board improperly discounted Mr. Higgins’s PTSD in
analyzing his removal. See SmithKline Beecham Corp.
v. Apotex Corp., 439 F.3d 1312, 1319–20 (Fed. Cir. 2006)
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HIGGINS v. DVA 11
it was erroneous that the Board “only acknowledged [he]
was diagnosed with PTSD, but . . . did not analyze the im-
pact of the PTSD symptoms or whether the PTSD may
have caused his misconduct.” Appellant’s Br. 30.
Though the Board’s analysis of Mr. Higgins’s PTSD is
cursory, it does not present reversible error. The Board
properly balanced Mr. Higgins’s PTSD with the severity of
his misconduct and the other Douglas factors. Mr. Hig-
gins’s PTSD was one of several mitigating factors consid-
ered by both the agency and the Board. Indeed, the Board
recognized that Mr. Higgins’s PTSD was severe and sub-
stantially limited one or more of his major life activities.
Decision, 2018 MSPB LEXIS 2040, at *37. But even ac-
cepting as true Mr. Higgins’s assertion that his PTSD
caused his threatening behavior toward other employees,
we cannot say that the agency’s determination to remove
Mr. Higgins was outside the tolerable limits of reasonable-
ness given the agency’s stated goal of protecting its employ-
ees from workplace violence. As we have repeatedly held,
the Board’s role in reviewing an agency’s penalty is re-
stricted to assuring that the agency’s penalty is within the
tolerable limits of reasonableness. Norris v. Sec. & Exch.
Comm’n, 675 F.3d 1349, 1355 (Fed. Cir. 2012) (quoting
Douglas, 5 M.S.P.B. at 332). The Board did not err in con-
cluding as much here.
Mr. Higgins complains that the Board did not consider
all the evidence and merely reasoned that, even if he had
(holding an argument waived because it was not presented
as a developed argument in the opening brief). Regardless,
any error in the Board’s consideration of Mr. Higgins’s
PTSD in its suspension analysis is harmless because the
record indicates that Mr. Kehus, the agency’s deciding offi-
cial, considered Mr. Higgins’s PTSD as a mitigating factor
in determining the reasonableness of Mr. Higgins’s sus-
pension. J.A. 276 (Tr. 255:12–15).
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12 HIGGINS v. DVA
PTSD, Mr. Higgins was still responsible for the words he
spoke. Appellant’s Br. 24. It is true that the Board stated
that (1) “neither the Rehabilitation Act nor the ADA im-
munize disabled employees from discipline for their mis-
conduct in the workplace,” and (2) “an agency is never
required to excuse a disabled employee’s violation of a uni-
formly-applied, job-related rule of conduct, even if the em-
ployee’s disability caused the misconduct.” Decision,
2018 MSPB LEXIS 2040, at *45–46. We agree that the
Board would have erred had this been the sum total of its
analysis. But, as explained above, the Board did not apply
a per se rule that a person suffering from mental illness is
always responsible for his misconduct. Rather, the Board
considered Mr. Higgins’s PTSD as a mitigating factor, bal-
anced that factor against the seriousness of the sustained
charges and other Douglas factors, and concluded that re-
moval was a reasonable and appropriate penalty in view of
the VAMC’s “top priority” to keep its employees safe, “es-
pecially in light of the plague of workplace violence which
afflicts our nation.” Id. at *45, *48.
B
Mr. Higgins analogizes his case to Malloy and
Bal v. Dep’t of the Navy, 729 F. App’x 923 (Fed. Cir. 2018),
arguing that as in those cases, a remand is appropriate
here, because the Board “performed no analysis of Mr. Hig-
gins’s medical evidence, ignoring his doctor’s testimony
completely.” Appellant’s Br. 30, 32–33. Neither case sup-
ports the remand Mr. Higgins seeks.
In Malloy, we vacated the Board’s decision affirming
the agency’s removal of Ms. Malloy and remanded because
the Board’s decision failed to consider any of the medical
evidence Ms. Malloy had submitted to the agency or the
Board. 578 F.3d at 1357. Ms. Malloy argued before the
agency and the Board that mental impairment sometimes
caused her to act inappropriately, that her response to her
proposed notice of removal indicated the presence of
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HIGGINS v. DVA 13
supporting medical documentation, and that she had pro-
vided “extensive medical documentation” at her hearing
before the Board. Id. at 1354. But in addition to treating
Ms. Malloy’s medical condition as irrelevant, her letter of
removal from the agency dismissed her medical condition
as lacking “any definitive medical evidence.” Id. The
Board’s decision acknowledged Ms. Malloy’s testimony
that her medical condition precluded her from performing
simple tasks but discounted her testimony as “not credible
and unsupported by the record,” further finding that she
had “failed to establish any medical reason or provide any
medical documentation that could justify or excuse her be-
havior.” Id. at 1356 (citations omitted).
Here, by contrast, both the agency’s deciding official
and the Board acknowledged Mr. Higgins’s PTSD and ex-
pressly considered it as a mitigating factor in assessing the
reasonableness of Mr. Higgins’s removal. J.A. 141–43
(Tr. 127:3–5, 131:11–132:12, 134:7–10); Decision,
2018 MSPB LEXIS 2040, at *44–45. Additionally, the
agency’s case supporting Mr. Higgins’s removal is stronger
than was the agency’s case for Ms. Malloy’s removal. Like
Mr. Higgins, Ms. Malloy had a history of conflict with her
supervisors. Malloy, 578 F.3d at 1353. Unlike Mr. Hig-
gins, however, Ms. Malloy was not found to present a
threat to herself or others, and her mental condition was
expected to resolve within a year of the onset of her symp-
toms. 578 F.3d at 1355. Mr. Higgins, by contrast, was
found to present a threat to other VAMC employees, and
his mental condition had “no expected date of remission,
full or partial.” J.A. 102; see also, e.g., J.A. 147 (Tr. 152:14–
153:9). Indeed, his psychologist had determined that he
“cannot work, even with restrictions, and this is perma-
nent.” J.A. 102.
Bal is similarly distinguishable. The Navy proposed
removal of Mr. Bal after he failed to report for work and
falsified time cards. 729 F. App’x at 924–25. Mr. Bal re-
sponded that his misconduct was related to his major
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14 HIGGINS v. DVA
depression, for which he provided medical documentation
and was seeking treatment. Id. at 925. Though the
Board’s decision acknowledged Mr. Bal’s depression diag-
nosis and the existence of supporting medical evidence, the
Board failed to weigh Mr. Bal’s depression as a mitigating
factor. Id. at 929. Instead, the Board discounted Mr. Bal’s
evidence of depression because it “did not establish inca-
pacity.” Id. (citation omitted). The Board also substituted
its own judgment in place of record evidence supporting
Mr. Bal’s rehabilitation, which included his prompt return
to work, “great improvement and . . . substantial behav-
ioral changes,” and his doctor’s opinion that he was “not
likely to repeat the problem[atic]” behavior. Id. at 929–30.
Setting this evidence aside, the Board concluded that
“Mr. Bal did not have rehabilitation potential because he
had not taken responsibility for his actions.” Id. at 927.
We held that the Board erred in assessing the reasonable-
ness of Mr. Bal’s removal by failing to consider Mr. Bal’s
depression as a mitigating factor and by failing to consider
Mr. Bal’s rehabilitation evidence. Id. at 928, 930.
Here, as discussed above, both the agency’s deciding of-
ficial and the Board expressly considered Mr. Higgins’s
PTSD as a mitigating factor in assessing the reasonable-
ness of his removal. J.A. 141–43 (Tr. 127:3–5, 131:11–
132:12, 134:7–10); Decision, 2018 MSPB LEXIS 2040,
at *44–45. Additionally, whereas Mr. Bal was “neither a
danger to himself or to others,” 729 F. App’x at 925 (cita-
tion omitted), Mr. Higgins presented a threat to other
VAMC employees, e.g., J.A. 123; J.A. 147 (Tr. 152:14–
153:9); J.A. 154 (Tr. 218:8–14). And it is undisputed that
unlike Mr. Bal, Mr. Higgins did not improve with contin-
ued treatment of his condition. Compare 729 F. App’x
at 929–30, with J.A. 102 and Oral Arg. at 7:27–8:40,
18:43–19:12, http://oralarguments.cafc.uscourts.gov/de-
fault.aspx?fl=2018-2352.mp3.
In sum, neither Malloy nor Bal provides a basis to va-
cate the Board’s decision and remand, and we discern no
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HIGGINS v. DVA 15
reversible error in the Board’s analysis of the reasonable-
ness of Mr. Higgins’s removal.
IV
Mr. Higgins also asserts that the Administrative Judge
abused his discretion by excluding testimony of Mr. Rees-
man and Ms. Depperman regarding an institutional mo-
tive to retaliate that was material to Mr. Higgins’s
whistleblower defense. “Procedural matters relative to dis-
covery and evidentiary issues fall within the sound discre-
tion of the board and its officials.” Curtin v. Office of Pers.
Mgmt., 846 F.2d 1373, 1378 (Fed. Cir. 1988) (citations
omitted).
With respect to Mr. Reesman, Mr. Higgins concedes
that Mr. Reesman “likely possessed no retaliatory motive,”
but argues that it was an abuse of discretion to exclude
Mr. Reesman’s proffered testimony because it “spoke pre-
cisely to those who influenced his decision to propose the
third retaliatory removal of Mr. Higgins.” Reply 13–14
(emphasis omitted). Although Mr. Higgins now contends
that Mr. Reesman’s testimony was relevant to an institu-
tional motive to retaliate, Mr. Higgins did not explicitly
proffer Mr. Reesman to testify regarding that topic. See
J.A. 77–78. Mr. Higgins proffered Mr. Reesman to “testify
that he prepared the Douglas factor analysis based on con-
versations with Mr. Ambrose, Ms. Andrea Baumer,
Ms. Jennifer Fann, and Mr. Goode . . . under the impres-
sion and belief that all of the aforementioned had filed ad-
verse reports against” Mr. Higgins. Id. (emphasis added).
To the extent that Mr. Higgins’s proffer of Mr. Reesman’s
testimony implicitly addresses institutional motive to re-
taliate, it appears to rely on the animus of other VAMC em-
ployees to establish such a motive, rather than any
firsthand knowledge unique to Mr. Reesman. See id. In-
deed, Mr. Higgins’s proffer recognizes that though
Mr. Reesman proposed Mr. Higgins’s removal, Mr. Rees-
man had “no substantial observation of,” and had “limited
Case: 18-2352 Document: 60 Page: 16 Filed: 04/17/2020
16 HIGGINS v. DVA
interaction with,” Mr. Higgins. J.A. 77. Mr. Higgins
clearly believed that the witnesses Mr. Reesman consulted
had direct knowledge of (and perhaps participated in fos-
tering) an institutional motive to retaliate against him.
Nonetheless, Mr. Higgins elected not to proffer any of them
to provide first-hand testimony regarding an institutional
motive to retaliate. See J.A. 74–81.
Because Mr. Higgins had identified, but chose not to
call, any of the VAMC employees who he asserted had filed
adverse reports against him, and Mr. Higgins did not ex-
plicitly proffer Mr. Reesman to testify regarding an insti-
tutional motive to retaliate, we conclude that the
Administrative Judge did not abuse his discretion in ex-
cluding Mr. Reesman’s testimony.
Turning to the Administrative Judge’s exclusion of
Ms. Depperman, Mr. Higgins argues that her excluded tes-
timony would have “provid[ed] further circumstantial evi-
dence of an institutional motive to retaliate,” by nature of
her position as “an Agency official who influenced the deci-
sion to remove.” Appellant’s Br. 51–52 (emphasis added).
Ms. Depperman was the VAMC’s Chief Financial Officer
and Mr. Reesman’s acting supervisor from April to
May 2017. In describing the value of Ms. Depperman’s tes-
timony as providing “further circumstantial evidence,”
however, Mr. Higgins suggests that her testimony was rep-
etitious of other proffered testimony. Indeed, the Adminis-
trative Judge permitted Mr. Higgins to testify and call
eleven additional witnesses to testify at the hearing, and
some of Ms. Depperman’s proffered topics overlapped with
those of other witnesses. E.g., J.A. 78 (Mr. Dunning);
J.A. 79 (Mr. Belmont). As with Mr. Reesman’s testimony,
we thus conclude that the Administrative Judge did not
abuse his discretion by excluding Ms. Depperman’s testi-
mony as “irrelevant and/or redundant.” J.A. 108.
Case: 18-2352 Document: 60 Page: 17 Filed: 04/17/2020
HIGGINS v. DVA 17
CONCLUSION
We have considered Mr. Higgins’s remaining argu-
ments and do not find them persuasive. For the foregoing
reasons, we affirm the Board’s decision.
AFFIRMED
COSTS
No costs.