On August 25, 2009, the Federal Circuit Court of Appeals issued a decision remanding an MSPB Appellant’s case back to the MSPB for additional review. The crux of the case, Malloy v. USPS (Fed. Circ. Docket No. 2008-3117), turns on the evidence of the Appellant’s mental health condition.

The relevant facts of the case were this: the Appellant was a Federal employee who was removed for being rude and inappropriate in emails and conversations with her supervisor. The Appellant did not dispute that she was rude or inappropriate. Instead, before the Deciding Official and the Merit Systems Protection Board (MSPB), it appears that she argued that her medical condition – a diagnosed mental health condition for which she was seeking treatment – played no small part in the outbursts of rude and inappropriate behavior.

The MSPB AJ sustained the removal, stating:

“I also find that the appellant has failed to establish any medical reason or provide any medical documentation that could justify or excuse her behavior. Although the appellant was repeatedly asked to provide medical documentation, she did not do so until the day of the hearing. I have reviewed these submissions and find no medical condition that would have caused her to say the things she said.”

The Appellant appealed to the Full MSPB which, not surprisingly, rubber-stamped the MSPB AJ’s opinion.The Fed Circuit vacated and remanded to the MSPB AJ for further consideration. The Fed Circuit concluded that neither the AJ nor the MSPB had considered the medical evidence in the record.

My Firm gets many calls each week from Federal employees seeking to challenge the MSPB AJ or Full Board’s ruling; many of those employees tell me that the AJ did not consider their evidence. As the Fed Circuit states in this case, it is difficult to overturn an AJ’s decision on these grounds: “It is not reversible error if the Board fails expressly to discuss all of the Douglas factors. The Board need only determine that the agency considered the factors significant to the particular case.” Kumferman v. Dep’t of Navy, 785 F.2d 286, 291 (Fed. Cir. 1986) (citations omitted); see also Connolly v. Dep’t of Justice, 766 F.2d 507, 514 (Fed. Cir. 1985) (“[I]t is not per se reversible error for the board not to address the Douglas factors specifically.”); Nagel v. Dep’t of Health & Human Servs., 707 F.2d 1384, 1386-87 (Fed. Cir. 1983) (holding that the Board is not required to articulate irrelevant factors when applying the Douglas analysis).”

This case was different from the norm, though. Board case law is clear that: “evidence that employee’s medical condition or mental impairment played a part in the charged conduct is ordinarily entitled to considerable weight as a mitigating factor.”).See generally VanFossen v. Dep’t of Hous. & Urban Dev., 748 F.2d 1579, 1581 (Fed. Cir. 1984). In the instant case, the Fed Circuit could not find that it the AJ or the Full Board considered, no less gave the requisite weight to, the primary Douglas Factor at issue in the case.

Thankfully, the Fed Circuit had some strong words for the AJ and the MSPB in its decision. The Fed Circuit found that:

“…the AJ’s statement that [the Appellant’s] representations about her medical condition were “not credible” is so totally at odds with the medical records as to raise strong doubts as to the thoroughness of the AJ’s review.”

I have often said, and will continue to say, that the best thing for any litigant (in the EEOC, the MSPB, the BVA, or any forum) is to have an Administrative Judge that gives the Appellant a chance to win or lose on the facts, and does not decide the case based on the political predispositions or prejudices of the individual on the bench. All my clients ever ask for is a equal and fair opportunity to present evidence and make an argument on their behalf. Fortunately, the overwhelming majority of MSPB and EEOC Judges provide just that opportunity.

However, those of us that litigate regularly in the federal employment sector are familiar with MSPB Decisions that give short shrift to much of the evidence and argument in the record. Many of us have litigated cases where the “equal and fair opportunity” is non-existent. Unfortunately, in most of these types of case, the AJ can insulate himself or herself from reversal on appeal by a carefully crafted decision that hints that evidence of record was considered, even when it may not have been given much consideration at all.

In this case, it appears that the AJ went too far…the MSPB’s conclusions and the Full Board’s rubber-stamp were so at odds with the evidence of record that, at least to the Federal Circuit Court of Appeals, they evidence a lack of consideration.

On another note, this case will prove helpful to Federal employees with mental health conditions. One theme underlying the facts and prior decisions in the Malloy case is the general disrespect for and misunderstanding of, mental health conditions. Malloy serves as a reminder to Deciding Officials, Administrative Judges of the MSPB, and the Full Merit Systems Protection Board, that mental health conditions are a significant mitigating factor in disciplinary considerations, and should be considered as such, without taint by personal or institutional prejudices.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with an attorney or lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you have questions about the MSPB, including appeals of removals, suspensions, Petitions for Review to the Full MSPB, or appeals to the Federal Circuit Court of Appeals, please contact an MSPB attorney at the Law Offices of Eric L. Pines, PLLC, to schedule a telephone consultation.