                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                      2009-3260


                               MICHAEL R. WENSINK,

                                                           Petitioner,

                                          v.

                        DEPARTMENT OF THE TREASURY,

                                                           Respondent.


      Michael R. Wensink, of Strongsville, Ohio, pro se.

       Roger A. Hipp, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Steven J. Gillingham, Assistant Director.

Appealed from: Merit Systems Protection Board
                       NOTE: This disposition is nonprecedential



United States Court of Appeals for the Federal Circuit

                                     2009-3260

                              MICHAEL R. WENSINK,

                                                                   Petitioner,

                                          v.

                       DEPARTMENT OF THE TREASURY,

                                                                   Respondent.

                             Petition for review of the
                Merit Systems Protection Board in CH0752090112-I-1

                         __________________________

                         DECIDED: December 14, 2009
                         __________________________


Before MAYER, CLEVENGER and DYK, Circuit Judges.

PER CURIAM.

      Michael R. Wensink appeals the final decision of the Merit Systems Protection

Board (“Board”) affirming his removal from Federal service. Wensink v. Dept. of the

Treasury, No. CH0752090112-I-1, 112 M.S.P.R. 68 (M.S.P.B. June 25, 2009).        On

appeal, Mr. Wensink argues that the Board failed to consider facts relevant to his

removal. We agree. Therefore, we vacate and remand for further proceedings.

                                           I

      Mr. Wensink was a special agent in the Criminal Investigation Division of the

Internal Revenue Service (“IRS”) until removed from employment. Initially placed on

Temporary Restricted Duty (“TRD”) in January 2007, Mr. Wensink was removed in
October 2008 for engaging in conduct unbecoming a federal law enforcement officer

and/or failing to follow managerial directions.    The IRS removed Mr. Wensink for

violating the conditions of his TRD status.

       The relevant facts of the case are simple. Mr. Wensink was hired by the IRS in

1977. On January 11, 2007, Mr. Wensink received a memorandum confirming that he

was being placed on TRD status “pending a review of your medical condition and an

assessment of your ability to perform law enforcement duties.” In addition to being

relieved of his Government-issued weapon, Mr. Wensink was instructed not to

participate in enforcement related duties.      Provided examples include executing

warrants, participating in high-risk surveillance, and making third-party contacts with

increased potential for physical danger.      On January 24, 2007, Mr. Wensink was

provided another memorandum informing him that he would also be relieved of his

Government-issued vehicle during the TRD status period.

       On May 7, 2007, Mr. Wensink received another memorandum regarding his TRD

status. It stated that “[a]fter exhibiting unusual behavior, you were placed on [TRD] on

January 3, 2007, pending a review of your medial condition and an assessment of your

ability to safely perform law enforcement duties . . . . On May 4, 2007, the decision was

made to continue your temporary restricted duty status to ensure your medical condition

is stable.”

       After receiving the May 2007 memorandum, Mr. Wensink continued working at

the IRS on TRD without incident until mid-March 2008. At that time, Mr. Wensink was

reprimanded for posting flyers, meeting with the Cleveland Police Department, and

faxing documents to various city and state officials. Investigative reports prepared by




2009-3260                                2
IRS agents concerning Mr. Wensink’s March activities note concern by the agents for

Mr. Wensink’s mental condition.     The IRS ultimately determined that Mr. Wensink

violated the conditions of his TRD status and referred to these actions in its August 14,

2008 notice of proposed removal.

      After Mr. Wensink was removed, he filed a timely appeal with the Board on

October 18, 2008. Because Mr. Wensink did not request a hearing, the Administrative

Judge (“AJ”) instructed the parties that the record would close on January 23, 2009.

The AJ also scheduled a close of record conference for January 7, 2009.

      The AJ conducted the conference on January 8, and noted in her summary that

“[t]he appellant is eligible for retirement and may seek retirement instead of pursuing

this appeal.” It appears from the AJ’s summary that the parties were close to settlement

and were working on the details of a settlement structure that would allow Mr. Wensink

to keep his health insurance coverage. To facilitate settlement, the AJ set a second

status conference for January 23, 2009, and moved the close of record date to

February 13, 2009.

      From the procedural posture of the case before us on appeal, it is clear that a

settlement was not reached.     Further, perhaps due to the likelihood of settlement,

Mr. Wensink did not submit his statement and supporting evidence until February 18,

five days after the deadline. The AJ rejected Mr. Wensink’s submission as untimely.

      On March 6, 2009, the AJ affirmed the agency’s action removing Mr. Wensink

from service.   Wensink v. Dept. of the Treasury, No. CH0752090112-I-1 (M.S.P.B.

March 6, 2009) (“Initial Decision”). Mr. Wensink subsequently petitioned the Board for




2009-3260                               3
review of the AJ’s decision. Mr. Wensink’s petition was denied on June 25, 2009, and

the appeal of the Board’s decision now comes to this court.

                                            II

      We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1295(a)(9). Our

scope of review in an appeal from a decision of the Board is limited. Specifically, we

must affirm the Board's decision unless we find it to be (1) arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law; (2) obtained without

procedures required by law, rule, or regulation having been followed; or (3) unsupported

by substantial evidence.   5 U.S.C. § 7703(c); Kewley v. Dep’t of Health & Human

Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).      Accordingly, we are bound by the

Board’s factual findings underpinning its determination “unless those findings are not

supported by substantial evidence.” Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316

(Fed. Cir. 1998).

      As the court has explained, an agency must establish three things to withstand

challenge to an adverse action against an employee.           Pope v. U.S. Postal Serv.,

114 F.3d 1144, 1147 (Fed. Cir. 1997). First, it must prove, by a preponderance of the

evidence, that the charged conduct occurred. 5 U.S.C. § 7701(c)(1)(B). Second, the

agency must establish a nexus between that conduct and the efficiency of the service.

5 U.S.C. § 7513(a); Hayes v. Dep't of Navy, 727 F.2d 1535, 1539 (Fed. Cir. 1984).

Third, it must demonstrate that the penalty imposed is reasonable. Pope, 114 F.3d at

1147 (citing Douglas v. Veterans Admin., 5 MSPB 313, 5 M.S.P.R. 280, 306-07 (1981)).

      We agree with the AJ that it is undisputed that the charged conduct occurred.

There is substantial evidence to support the Board’s conclusion that the conduct was in




2009-3260                               4
violation of Mr. Wensink’s TRD status. The AJ also found that “[t]he agency cannot

effectively complete its mission with Special Agents who do not conform to legitimate

supervisory instruction and who act in a manner disparaging to the agency.” Initial

Decision at 11.

      In assessing the agency’s imposed penalty, the AJ addressed the factors set

forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). The AJ

noted that the agency considered the nature of the misconduct, potential damage to the

agency’s reputation, Mr. Wensink’s disciplinary record, and Mr. Wensink’s 31 years of

“fully successful or better service with the agency.”           Initial Decision at 11.

Conspicuously absent, however, is consideration of the situation that led to

Mr. Wensink’s placement on TRD.

      The record before us is filled with statements regarding the agency’s concerns

regarding Mr. Wensink’s health and mental stability. Yet, the Board, and it appears the

agency, failed to take that into consideration in determining the reasonableness of

removing Mr. Wensink from Federal service for his conduct. As we have previously

stated, “when mental impairment or illness is reasonably substantiated, and is shown to

be related to the ground of removal, this must be taken into account when taking an

adverse action against the employee.” Malloy v. U.S. Postal Serv., 578 F.3d 1351,

1356 (Fed. Cir. 2009).    The agency placed Mr. Wensink on TRD due to unusual

behavior and he remained on TRD because the agency found him to be unstable.

Mr. Wensink’s removal was due to violations of his TRD status. There is no question

that Mr. Wensink’s medical condition is related to the ground of removal.




2009-3260                               5
       Mental impairment warrants consideration and is ordinarily entitled to weight as

a mitigating factor. See Malloy, 578 F.3d at 1357; Roseman v. Dep’t of Treasury,

76 M.S.P.R. 334, 345 (1997). The Board failed to address whether this mitigating factor

should result in a penalty other than removal, which resulted in Mr. Wensink’s loss of

medical insurance coverage, when the appellant is eligible for retirement after 31 years

of service. We do not suggest that Wensink should have been permitted to remain on

active duty, but merely that the agency should have considered mandatory retirement or

disability retirement in lieu of separation as alternatives before imposing the penalty of

removal.    See 5 C.F.R. § 831.1205.          Accordingly, we vacate and remand for

consideration of the evidence regarding Mr. Wensink’s mental condition and stability,

and reapplication of the Douglas factors in light of this evidence.




2009-3260                                6
