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, Washington, DC, argued for respondent. Also represented by 

JOSEPH H. HUNT, ALLISON KIDD-MILLER, ROBERT EDWARD 

KIRSCHMAN, JR.

 ______________________

Before LOURIE, TARANTO, and STOLL, Circuit Judges.

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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 Department of Veterans Affairs from his role as a Supply Technician at the Memphis Veterans Administration Medical 

Center due to misconduct. Mr. Higgins argues that the 

Board improperly discounted his medical evidence of posttraumatic stress disorder (PTSD) in assessing the reasonableness of his suspension and removal, and that the Administrative 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 unlawful 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 December 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. Pointdexter 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 Director of the VAMC, sustained Mr. Higgins’s suspension because 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 suspension, 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 whistleblower status and PTSD as mitigating factors in determining 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, rather 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 language. Mr. Reesman, the official proposing Mr. Higgins’s 

removal, identified three incidents supporting removal. 

1 Douglas sets forth twelve factors relevant to determining 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. Higgins leaving a meeting with VA management officials, including 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 unsafe after the meeting. 

Second, during a March 2017 meeting at the VAMC’s 

Equal Employment Opportunity office, Mr. Higgins appeared very upset and made threatening and profane statements 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 recommended that the Director wear a bulletproof vest and receive a police escort to and from his car each day. J.A. 147 

(Tr. 152:14–153:9). Fearing for his life, the Director accepted 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 Director successfully filed a workers’ compensation claim for 

PTSD. J.A. 231 (Tr. 157:7–22).

Third, in April 2017, Mr. Higgins loudly confronted another VAMC employee who was escorting a veteran’s family 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 veteran’s family stepped between the employee and Mr. Higgins, 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 uncomfortable 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 accompanying 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 comments made by the employee and the manner in which he 

made them have caused fellow employees, management officials and visitors to the VAMC to become frightened and 

apprehensive.” J.A. 111. Mr. Reesman identified “mitigating factors, such as, ongoing work tension, [and] the employee[’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. Reesman 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 record.” J.A. 113. Mr. Reesman did not testify at the hearing 

on the merits of Mr. Higgins’s case. Indeed, the Administrative Judge’s prehearing order summarily precluded

Mr. Reesman’s testimony as “irrelevant and/or redundant.” 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). According to the terse, two-sentence summary that Mr. Dunning himself wrote, Mr. Dunning determined that removal 

was warranted due to Mr. Higgins’s “[s]ustained pattern of 

disruptive behavior consisting of profane language, intimidating 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 removal decisions to the Board, which consolidated Mr. Higgins’s appeals, denied corrective action with respect to 

Mr. Higgins’s suspension, and affirmed the agency’s removal decision. Considering Mr. Higgins’s suspension, the 

Administrative Judge noted prior decisions in which “insolent 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 reasonable given that Mr. Higgins had previously been disciplined 

for similar misconduct and “did not meaningfully deny using the language charged” in the context of meeting his new 

second-level supervisor. Id. at *13–14. The Administrative Judge also concluded that Mr. Higgins failed to establish a whistleblower defense because he failed to establish 

an institutional motive to retaliate. Id. at *15–16. The Administrative 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 seriousness of the charges.” Id. at *45. In so finding, he emphasized Mr. Dunning’s statements that “the safety of 

Memphis VAMC employees is his top priority,” that allowing Mr. Higgins to stay at the VAMC would not be consistent with that priority, and that Mr. Higgins’s “.45 to the 

Director’s head” remark standing alone would justify removal. 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 reasonableness” and promoted “the efficiency of the service.” Id. 

The Administrative Judge found that Mr. Higgins had 

established a prima facie whistleblower retaliation defense. Id. at *30–31. Examining the Carr factors, however, 

the Administrative Judge determined that the agency’s evidence was strong, Mr. Higgins had failed to prove a strong

institutional motive to retaliate, and neither party had presented 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 absence 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. Higgins appeals.

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8 HIGGINS v. DVA

DISCUSSION

On appeal, Mr. Higgins asserts that the Board improperly 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 jurisdiction over Mr. Higgins’s appeal under 28 U.S.C. 

§ 1295(a)(9). Citing Mr. Higgins’s original Form 10 Statement Concerning Discrimination, which did not abandon 

Mr. Higgins’s discrimination claims, the Government argues that we do not have jurisdiction over this appeal because it is a “mixed” case involving an MSPB appeal of a 

personnel action and an allegation that the personnel action 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 adverse action prompted, in whole or in part, by the employing 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 Discrimination, 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 discrimination claims, we have jurisdiction over his appeal. 

II

We will uphold the Board’s decision unless it is “(1) arbitrary, 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) “demonstrate that the penalty imposed was reasonable in light of 

the relevant factors set forth in Douglas v. Veterans Admin[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 evidence. 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 employee establishes this prima facie case of reprisal for whistleblowing, 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 disclosure.’” 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 decision; and [3] any evidence that the agency takes 

similar actions against employees who are not 

whistleblowers but who are otherwise similarly situated.

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 evidence of his PTSD.2 Specifically, Mr. Higgins asserts that 

2 Mr. Higgins’s opening brief raises as separate issues 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 improperly discounted his PTSD. See Appellant’s Br. 26–33. Indeed, 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 discounted 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 impact 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. Higgins’s PTSD was one of several mitigating factors considered by both the agency and the Board. Indeed, the Board 

recognized that Mr. Higgins’s PTSD was severe and substantially limited one or more of his major life activities. 

Decision, 2018 MSPB LEXIS 2040, at *37. But even accepting 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 reasonableness given the agency’s stated goal of protecting its employees from workplace violence. As we have repeatedly held, 

the Board’s role in reviewing an agency’s penalty is restricted 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 concluding 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 official, considered Mr. Higgins’s PTSD as a mitigating factor 

in determining the reasonableness of Mr. Higgins’s suspension. 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 immunize disabled employees from discipline for their misconduct in the workplace,” and (2) “an agency is never 

required to excuse a disabled employee’s violation of a uniformly-applied, job-related rule of conduct, even if the employee’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, balanced that factor against the seriousness of the sustained 

charges and other Douglas factors, and concluded that removal was a reasonable and appropriate penalty in view of 

the VAMC’s “top priority” to keep its employees safe, “especially 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. Higgins’s medical evidence, ignoring his doctor’s testimony 

completely.” Appellant’s Br. 30, 32–33. Neither case supports 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 provided “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 behavior.” Id. at 1356 (citations omitted).

Here, by contrast, both the agency’s deciding official 

and the Board acknowledged Mr. Higgins’s PTSD and expressly 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. Higgins, 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 symptoms. 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 permanent.” 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 responded 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 diagnosis 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 incapacity.” 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 behavioral 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 reasonableness 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 official and the Board expressly considered Mr. Higgins’s 

PTSD as a mitigating factor in assessing the reasonableness 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 (citation 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 continued 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/default.aspx?fl=2018-2352.mp3. 

In sum, neither Malloy nor Bal provides a basis to vacate 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 reasonableness of Mr. Higgins’s removal.

IV

Mr. Higgins also asserts that the Administrative Judge

abused his discretion by excluding testimony of Mr. Reesman and Ms. Depperman regarding an institutional motive to retaliate that was material to Mr. Higgins’s

whistleblower defense. “Procedural matters relative to discovery and evidentiary issues fall within the sound discretion 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 precisely 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 institutional 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 conversations with Mr. Ambrose, Ms. Andrea Baumer, 

Ms. Jennifer Fann, and Mr. Goode . . . under the impression and belief that all of the aforementioned had filed adverse 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 retaliate, it appears to rely on the animus of other VAMC employees to establish such a motive, rather than any 

firsthand knowledge unique to Mr. Reesman. See id. Indeed, Mr. Higgins’s proffer recognizes that though 

Mr. Reesman proposed Mr. Higgins’s removal, Mr. Reesman had “no substantial observation of,” and had “limited 

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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 fostering) 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 explicitly proffer Mr. Reesman to testify regarding an institutional motive to retaliate, we conclude that the 

Administrative Judge did not abuse his discretion in excluding Mr. Reesman’s testimony.

Turning to the Administrative Judge’s exclusion of 

Ms. Depperman, Mr. Higgins argues that her excluded testimony would have “provid[ed] further circumstantial evidence of an institutional motive to retaliate,” by nature of 

her position as “an Agency official who influenced the decision 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 testimony as providing “further circumstantial evidence,” 

however, Mr. Higgins suggests that her testimony was repetitious of other proffered testimony. Indeed, the Administrative 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 testimony as “irrelevant and/or redundant.” J.A. 108.

Case: 18-2352 Document: 60 Page: 16 Filed: 04/17/2020
HIGGINS v. DVA 17

CONCLUSION

We have considered Mr. Higgins’s remaining arguments and do not find them persuasive. For the foregoing 

reasons, we affirm the Board’s decision.

AFFIRMED

COSTS

No costs.

Case: 18-2352 Document: 60 Page: 17 Filed: 04/17/2020