Purifoy v. Department of Veterans Affairs
2016 U.S. App. LEXIS 17883
| Fed. Cir. | 2016Background
- Purifoy, a VA housekeeping aid, missed work in April 2013, sought VA substance-abuse treatment, and later entered a state program (MSDF) as an alternative to parole revocation; he did not complete the treatment and remained incarcerated for an additional 38 days.
- The VA charged him with extended unauthorized absence: initially a single charge (later rescinded) and then two charges—April 4–5, 2013, and May 7–Oct 8, 2013 (the latter encompassed his MSDF stay).
- An Administrative Judge (AJ) sustained the April 4–5 charge and sustained only 38 days of the MSDF-related absence (not the full six months), finding Purifoy had notified supervisors and had been seeking treatment.
- The AJ applied Douglas mitigation factors, found many factors favored mitigation (including strong potential for rehabilitation and minimal job duties), and reduced removal to a 40-day suspension.
- The MSPB reversed the AJ, reinstated removal, and concluded most Douglas factors weighed against mitigation (finding insufficient rehabilitation efforts and adequate notice of discipline), but did not fully address alternative sanctions for the reduced 40-day absence.
- The Federal Circuit vacated and remanded because the Board failed to consider relevant Douglas factors (alternative sanctions and rehabilitation) and improperly discounted the AJ’s demeanor-based credibility findings without adequate explanation.
Issues
| Issue | Purifoy's Argument | VA's Argument | Held |
|---|---|---|---|
| Whether the Board adequately applied Douglas mitigation factors before affirming removal | Board failed to consider relevant Douglas factors (adequacy of lesser sanctions; rehabilitation) after AJ reduced the sustained absence to 40 days | Penalty of removal was reasonable and within table of penalties; Board need not adopt AJ’s mitigation view | Vacated and remanded: Board must consider all relevant Douglas factors, including alternative sanctions for the 40-day absence |
| Whether the Board properly rejected AJ’s credibility-based findings about rehabilitation | AJ’s demeanor-based findings (continued treatment, sobriety, strong potential for rehabilitation) deserved deference | Board viewed record evidence as showing Purifoy was not "fully pursuing" rehabilitation and thus could weigh factor against mitigation | Vacated and remanded: Board improperly substituted its view for AJ’s demeanor-based credibility findings without adequate rationale and must afford special deference to those findings |
Key Cases Cited
- Jackson v. Veterans Administration, 768 F.2d 1325 (Fed. Cir. 1985) (MSPB must give special deference to AJ credibility findings based on demeanor)
- Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir. 2002) (Board cannot overturn AJ demeanor-based credibility findings simply because it disagrees)
- Universal Camera Corp. v. N.L.R.B., 340 U.S. 474 (U.S. 1951) (substantial-evidence review recognizes special weight to factfinder who heard witnesses)
- Malloy v. U.S. Postal Service, 578 F.3d 1351 (Fed. Cir. 2009) (agency bears burden to prove conduct and that penalty was reasonable under Douglas)
- Nagel v. Department of Health & Human Services, 707 F.2d 1384 (Fed. Cir. 1983) (Board must consider relevant Douglas factors; need not discuss each factor if not relevant)