955 F.3d 1347
Fed. Cir.2020Background
- Higgins worked at Memphis VAMC since 2007, had a reputation as a whistleblower and recurrent conflict with supervisors and coworkers.
- In 2016 a psychologist diagnosed Higgins with chronic PTSD, concluding he could not work and that the condition had no expected remission; PTSD was raised to the agency as a mitigating factor.
- Agency discipline: a March 2017 suspension for use of profane/disrespectful language; a June 2017 removal based on three incidents (Feb: “I know where you live” remark; Mar: threatening/profane statements at an EEO meeting including “.45 to the Director’s head,” leading the Director to adopt police escort and body armor; Apr: a loud, confrontational exchange in view of a veteran’s family).
- Agency officials prepared Douglas-factor analyses; some writers noted mitigating factors (including work tension) but Reesman’s written analysis did not mention PTSD; the Director authorized removal, stating safety of employees was the top priority.
- The MSPB denied corrective action as to the suspension and affirmed removal after concluding the agency proved the charges and that Douglas factors (including PTSD as mitigating) did not render removal unreasonable; the judge found Higgins established a prima facie whistleblower claim but the agency showed it would have taken the same action under Carr.
- On appeal Higgins argued the Board improperly discounted his medical evidence of PTSD when assessing penalties and abused discretion by excluding proffered witnesses about institutional motive to retaliate; the Federal Circuit affirmed.
Issues
| Issue | Higgins' Argument | Government's Argument | Held |
|---|---|---|---|
| Jurisdiction over appeal | Court lacks jurisdiction if this is a mixed case; Higgins’ Form 10 left discrimination claims | Higgins abandoned discrimination claims in an amended Form 10 | Court has jurisdiction under 28 U.S.C. §1295(a)(9) because Higgins abandoned discrimination claims |
| Whether Board improperly discounted PTSD in assessing reasonableness of suspension/removal | Board ignored and failed to analyze how PTSD caused misconduct and thus erred in penalty assessment | Agency and Board considered PTSD as a mitigating factor and balanced it against seriousness of threats and safety concerns | No reversible error: Board and agency considered PTSD; given threats and safety priority removal was within tolerable limits of reasonableness |
| Whether Administrative Judge abused discretion by excluding testimony (Reesman, Depperman) about institutional motive to retaliate | Excluded testimony was relevant circumstantial evidence of institutional motive and exclusion prejudiced Higgins’ whistleblower defense | Judge properly excluded testimony as irrelevant or redundant; Higgins failed to proffer first-hand testimony from the employees he claimed evidenced institutional animus | No abuse of discretion: exclusion was within judge’s authority because Higgins did not proffer first-hand witnesses and testimony overlapped with other allowed testimony |
Key Cases Cited
- Malloy v. U.S. Postal Serv., 578 F.3d 1351 (Fed. Cir. 2009) (remand required where Board failed to consider medical evidence supporting mitigation)
- Carr v. Social Sec. Admin., 185 F.3d 1318 (Fed. Cir. 1999) (three-factor test to assess whether agency would have taken same action absent protected disclosure)
- Whitmore v. Dep’t of Labor, 680 F.3d 1353 (Fed. Cir. 2012) (burden-shifting framework for whistleblower defense; agency must show by clear and convincing evidence it would have taken same action)
- Norris v. Sec. & Exch. Comm’n, 675 F.3d 1349 (Fed. Cir. 2012) (review of agency penalty limited to whether penalty is within tolerable limits of reasonableness)
- Perry v. Merit Sys. Prot. Bd., 137 S. Ct. 1975 (2017) (mixed cases raising discrimination claims belong in district court)
- Shapiro v. Social Sec. Admin., 800 F.3d 1332 (Fed. Cir. 2015) (definition of substantial evidence standard for administrative review)