may please the court i'm john witty with government accountability project for the petitioner sean higgins a hero dedicated to improving health care for america's veterans one of the most important whistleblowers in the  system at great personal cost he's including suffering crippling and obvious p t s d he has brought to light numerous breakdowns in health care in the at the v a what is extensive medical evidence of p t s d around not enough to show that you know any of perhaps it could have just been stated a lot more detail and a lot more extensive we but why isn't that enough to show that in this case the board actually considered the p t s d but determined that the seriousness of some of the remarks made out was outweighed the p t s d and the other mitigating factors i mean i don't think there's any case law that says in circumstances where there is a mental illness that's it you can't consider other factors there still has to be considered and it can be weighed judge cole the a j here acknowledged p t s d and then there was no subsequent analysis or consideration of what was the likely how important how big of a factor was p what was the relationship between his p t s d and the and the manifest conduct and then how does the p t s d diagnosis fit in as a mitigating factor all of that analysis was missing the only thing the the a group to say that in fact i conclude that the conduct was brought about by the p t s d but nonetheless given the need for safety in the workplace i find that it's not really what would have been done he i think the judge foliate the a j should have addressed the medical evidence of the p t s d to talk about its severity and perhaps more to talk more about it source and then more importantly connect t heard testimony from dr valentine about how the p t s d was caused by his working at the v a and his fear of reprisal from the management and his distrust of other employees and that c s d and then you would you would imagine that that would cause you to be a less than stellar worker and then it would also prompt wavey in a j to ask or the actually the leadership of the hospital to ask what can we do here to make this employee a better employee what responsibility do we have higher steamers when white argument was made i didn't see a lot of evidence in the record before me about any sort of showing that was made that there's some alternative available to remove all that was both something of a lesser penalty and would satisfy also the need to  protect other employees at the v a c feeling safe and so i didn't see any evidence for example that he could maintain his job and continue to do his job while working from home or anything which i didn't see that kind of finding something like that made  not no judge though and i think what i'm with i hear of her question correctly what i'm thinking is the agency made no effort to find out the source of his problem or ask him the source of his problem he was never interviewed about these incidents he was never questioned what what's the what is your state right now why are why are you acting like this they never asked what they could do to help him at all like for instance an employee assistance program or even in the worst case scenario a psychiatric examination there was never any effort to help him be a good employee and there was he did have judged all he did have a request retirement and after much much going around he did eventually get that but there was never a referral to employ assistance there was never a questioning of him about what can management do to support this man who's obviously in this amazing amount of distress and of course it was masking what the source of the distress was at the same time when he was there casting money for a doctor valentine or their wi have been attributable to it might not be expected to be repeated in the future thank you for that question judge toronto as a matter of fact you know p t s d they one of the advanced therapies is e d r but you have to get patients stable to some extent and she did testify that she wanted to move on to the m d r two to address his p t s d but she never could because every time he went back to the hospital he would get that it wasn't getting better and that was the old that was the illusion she was making when she made she testified that way that it it it wasn't you know it was room she wanted to make improvements with him and she had made improvements with him but he kept on getting retrigger irritability and she testified directly about how that fits into his conduct for instance when he asked that he wanted to be addressed by his st name that would have been a situation perhaps a symptom of hyper vigilance or when he asked with toric late what do i have to do to get management's attention here that might have been a really experiencing of the trauma and feeling endangered which mr higgins alluded to in the testimony himself and that it was happening to him right there at the trial as he was testifying so the a j ignored all of that that discussion and then he did no analysis of the p t s d and he simply adopted mr dunning's he parroted mr dunning's aphorism that mr higgins is responsible for the words he spoke and that gives a little indication of there's no discretion anymore there's no mitigation possible if you're responsible for the words you spoke and this was despite hearing the testimony i'll tell you a let the court know that ms grimes also described mr higgins as being in an psychiatric episode during the ito office affair and this was despite mr rhys men in the douglas factors putting in the in the effect of the symptoms as well say listing ongoing work tension conflict with management perceived mistrust and anger would senior leadership so there were all of these flags and though no allusion to it and this is contrary to this court's rulings in malloy and balco the more this court chastised the mole the the a j in malloy for only having reviewed the volin us medical evidence which we have i believe we have here and then in ballard this court chastised the board's ruling as being devoid of any substantive discussion ambrose bomber good and fan who who were all and we say in the proffer there that he knew that all four of them had filed adverse reports against mr hagan's prior and yet he used those four to influence and and shape his removal decision and then at the very top of that section is where he talks about ms where we made allusion to ms depor man his boss the deputy director of the facility at the time  and her her influence on him is is laid out there as she had talked to him about the problems he had with the whole organization and later on we proffered our exhibit because it was going to make her and the director mr belmont happy they had lost trust in him if he didn't change this report of contact to allege that mr higgins had sworn had used profanity in this of the evidence of motive  reviewing the agency's penalty of removal is to give weight in consideration to all of the douglas factors so mr higgins takes concern with factor number eleven the mitigating circumstances and whether the administrative judge consider this against after i'd point you to your honor appendix twenty five which you had already referenced as well as appendix twenty seven and he is crediting mr dunning the deciding officials testimony mr dunning malloy the only thing that's required is weight in consideration there is no requirement as mr higgins argues the administrative judge needs to do this extensive analysis of the medical conditions and the distinction between malloy and the bow case that mr hague and cites is that in both of those cases there was substantiated mental impairment happen to be depression in both of those cases and the administrative judge did not consider the mental impairment as a mitigating factor in either of those cases exactly it gave it no weight at all and said i'm not considering this i don't find it credible impose of those cases the court this court then came and said when there is a mental impairment that's substantiated you have to give it weight and consideration and then went on to say that if you're not going to then you need to provide some analysis as to why you think the mental impairment should be considered mitigating and that's different from here because the administrative judge here did credit mr higgins is mental impairment his p t s d as a mitigating factor and when he waved to them he said that he was left with a firm conviction that because of mr agree just leave disruptive and profane conduct on balance or when he was weighing the two he thought that the agency penalty of removal was within the bounds of reason and that's exactly what's required under douglas is this considered that and decided even if he wasn't as blameworthy as somebody without that condition the conduct every last is something we don't need to live with another constantly which i think i asked  posing counsel about that perhaps there could be evidence that the p t s d is under control moving in a good direction and so for a forward looking question of whether we can expect this in the future the evidence might suggest that in the abstract evidence on the subject might suggest that removal is an unnecessary penalty but i think i heard  the answer to my question that the latter sort of evidence is not in this case and indeed the medical evidence or psychological evidence is that things were not looking better that's correct john r and what is in the record is not so much as mr higgins was improving or his conduct in the workplace was getting better what the agency considered and the administrative judge mentioned was that mr higgins has had an extensive history of misconduct the agency considered to prior suspensions that he had and then there was a suspension in this case and then the removal was based on three separate incidents so are you suggesting that those prior incidents were also  cars by p t s d i was just wondering how this tied into p t s d that was not part of the record your honor whether those prior incidents and they were years before but the agency did consider the history of misconduct when he was doing when it was doing the balancing under the douglas factors and the administrative judge found that that history of misconduct was relevant was what about the question about are you aware of anything the record that would show that p t s d was progressing in a positive direction in other words that he was receiving  getting better or is there evidence that it was not getting is there anything in the record to that effect no your honor dr valentine did testify mr higgins as doctor and she did not testify as to positive work towards th or any significance as far as whether it was getting better or being remediated in any way rather she did testify that the p t s d may have or could have caused mr higgins to have these outbursts but again that just goes to douglas  number eleven and that's part of the wayne and valentyn consideration and administrative judge did take that into consideration which is all that's required to mr higgins at any point marked argue one alternative to removal here would be you know changing the workplace conditions for him for example perhaps his position would have allowed him to work from home or something to this effect where he could have performed his due and at the same time you know have been able to  be not triggered and not have these workplace problems and seek treatment there's nothing in the record to that effect your honor there was some testimony about a previous request of mr higgins to tell the work on a permanent basis but that wasn't  agency though he had a separate workspace and he didn't have interaction in the level that he used to say the agency did take measures to accommodate but what it comes down to for this core is whether the administrative judge gave consideration a factors on p just twenty five through twenty seven the administrative judge did just that so i'll move now to mr higgins next argument that the administrative judge abused his discretion in his exclusion of certain witnesses and in his consideration of the evidence and mr higgins takes concern with karr factor to under his whistleblower retaliation claim affirmative defense excuse me and says that that administrative judge didn't properly consider motive to retaliate mr hagan's those claims as it goes to institutional motive to retaliate are really of no concern for this court because the administrative judge did credit and a possible motive to retaliate so he did no that there might be some institutional motive toward tally it given mr higgins is a long history of his whistle blowing so the administrative judge considered that as it relates to personal motive to retaliate the administrative judge heard no so mr higgins his claim is that mr rhys men had this motive to retaliate from someone else and that carried through to the deciding official his proffer says that he relied on report from a number of witnesses he didn't seek to call any of those witnesses at the trial and those reports that he relied on and were in the record and so presumably any motive to retaliate that would have come from those reports could have been addressed by the witnesses who made the reports had he chose to call for the list of witnesses you could exclude was done well your honor mr aris man was merely going to testify i reckon look i believe it's on page seventy seven of the administrative records he was going to testify to a number of things including the that you don't need to put on a bunch of evidence about that these reports that agency called these witnesses to actually testify and so for them to test for mr aris and to testify about the reports the actual witnesses were testifying to use seems redundant and then he said that he can testify about mr poindexter using profane language the administrative judge noted in his order and said i realize mr poindexter also might have used profane language but  retaliate and influenced the decision maker to make a certain action mr hagan's this theory is there were a number of people with motive to retaliate who then influenced the proposing official who then influenced the deciding official and what's also important to know in this chain is mr dunning who was the deciding official under took his own analysis he heard from mr higgins st before he considered any of mr rhys miss douglas factor analysis he heard from will he heard from mr higgins that he looks through the evidence file and he also considered mr rhys men's douglas factor analysis so he did a holistic consideration an independent consideration and ultimately determined that based on the reasoning yes your honor but he also has further testimony that's in the record explaining b what he went through he said that he talked with mr higgins and allowed him an oral replied he went into that decision with an open so mr dunning did undertake his own analysis here and even if all of these other witnesses two times removed had some motive to retaliate they were never elicited at the hearing and mr higgins has your honour's a just a correction that mr higgins did have all uniformly good performance of reviews prior to the termination he was a good employee and dr valentine did testify that he had the well his dr valentine's a letter on page one o one judge told does say that out at the very bottom outside of therapy mr higgins has willingly used coping skills discussed in this session that's one of the places where she alludes to that right there and going back to judge told earlier question about telework he he had been offered telework and he could have done his job by a telework as well he had worked to get there had been a discussion about telework the the the person who could have testified about institutional retaliatory motive was recent he was the one at the focal point of taking and all of these other witnesses statements and synergize ing it into the proposal for removal and the douglas factor analysis so to call d the other witnesses who would have likely denied any animists there's those in management who know to retire to to deny that and then there's those others outside the system who will simply tell the truth about what was going on and that was what fact what mr aris win was prepared to do and discretion at that point right there mr dunning's finally if i say i'm out of time your honor and fighting finish my last point mr dunning's removal file was tainted by the fraudulent order of protection that was in there and also by all of the lengthy listing of the police reports that had been made against mr hague and so his mr dunning's mind was not clear when he reviewed the performance file and so we