Case: 18-2352   Document: 60     Page: 1   Filed: 04/17/2020




   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, Washing-
 ton, 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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 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 Depart-
 ment of Veterans Affairs from his role as a Supply Techni-
 cian at the Memphis Veterans Administration Medical
 Center due to misconduct. Mr. Higgins argues that the
 Board improperly discounted his medical evidence of post-
 traumatic stress disorder (PTSD) in assessing the reason-
 ableness of his suspension and removal, and that the Ad-
 ministrative 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 unlaw-
 ful 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 Decem-
 ber 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. Pointdex-
 ter 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 Direc-
 tor of the VAMC, sustained Mr. Higgins’s suspension be-
 cause 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 sus-
 pension, 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 whistle-
 blower status and PTSD as mitigating factors in determin-
 ing 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, ra-
 ther 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 lan-
 guage. Mr. Reesman, the official proposing Mr. Higgins’s
 removal, identified three incidents supporting removal.



     1  Douglas sets forth twelve factors relevant to deter-
 mining whether an adverse agency action is reasonable.
 5 M.S.P.B. at 331–32.
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     First, in February 2017, a witness observed Mr. Hig-
 gins leaving a meeting with VA management officials, in-
 cluding 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 un-
 safe after the meeting.
     Second, during a March 2017 meeting at the VAMC’s
 Equal Employment Opportunity office, Mr. Higgins ap-
 peared very upset and made threatening and profane state-
 ments 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 recom-
 mended that the Director wear a bulletproof vest and re-
 ceive a police escort to and from his car each day. J.A. 147
 (Tr. 152:14–153:9). Fearing for his life, the Director ac-
 cepted 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 Direc-
 tor successfully filed a workers’ compensation claim for
 PTSD. J.A. 231 (Tr. 157:7–22).
     Third, in April 2017, Mr. Higgins loudly confronted an-
 other VAMC employee who was escorting a veteran’s fam-
 ily 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 vet-
 eran’s family stepped between the employee and Mr. Hig-
 gins, 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 uncomfort-
 able 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 accom-
 panying 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 com-
 ments made by the employee and the manner in which he
 made them have caused fellow employees, management of-
 ficials and visitors to the VAMC to become frightened and
 apprehensive.” J.A. 111. Mr. Reesman identified “mitigat-
 ing factors, such as, ongoing work tension, [and] the em-
 ployee[’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. Rees-
 man 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 rec-
 ord.” J.A. 113. Mr. Reesman did not testify at the hearing
 on the merits of Mr. Higgins’s case. Indeed, the Adminis-
 trative Judge’s prehearing order summarily precluded
 Mr. Reesman’s testimony as “irrelevant and/or redun-
 dant.” 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). Ac-
 cording to the terse, two-sentence summary that Mr. Dun-
 ning himself wrote, Mr. Dunning determined that removal
 was warranted due to Mr. Higgins’s “[s]ustained pattern of
 disruptive behavior consisting of profane language, intimi-
 dating 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 re-
 moval decisions to the Board, which consolidated Mr. Hig-
 gins’s appeals, denied corrective action with respect to
 Mr. Higgins’s suspension, and affirmed the agency’s re-
 moval decision. Considering Mr. Higgins’s suspension, the
 Administrative Judge noted prior decisions in which “inso-
 lent 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 reasona-
 ble given that Mr. Higgins had previously been disciplined
 for similar misconduct and “did not meaningfully deny us-
 ing the language charged” in the context of meeting his new
 second-level supervisor. Id. at *13–14. The Administra-
 tive Judge also concluded that Mr. Higgins failed to estab-
 lish a whistleblower defense because he failed to establish
 an institutional motive to retaliate. Id. at *15–16. The Ad-
 ministrative 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 serious-
 ness of the charges.” Id. at *45. In so finding, he empha-
 sized Mr. Dunning’s statements that “the safety of
 Memphis VAMC employees is his top priority,” that allow-
 ing Mr. Higgins to stay at the VAMC would not be con-
 sistent with that priority, and that Mr. Higgins’s “.45 to the
 Director’s head” remark standing alone would justify re-
 moval. 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 reasona-
 bleness” and promoted “the efficiency of the service.” Id.
     The Administrative Judge found that Mr. Higgins had
 established a prima facie whistleblower retaliation de-
 fense. Id. at *30–31. Examining the Carr factors, however,
 the Administrative Judge determined that the agency’s ev-
 idence was strong, Mr. Higgins had failed to prove a strong
 institutional motive to retaliate, and neither party had pre-
 sented 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 ab-
 sence 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. Hig-
 gins appeals.
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 8                                              HIGGINS v. DVA




                         DISCUSSION
     On appeal, Mr. Higgins asserts that the Board improp-
 erly 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 jurisdic-
 tion over Mr. Higgins’s appeal under 28 U.S.C.
 § 1295(a)(9). Citing Mr. Higgins’s original Form 10 State-
 ment Concerning Discrimination, which did not abandon
 Mr. Higgins’s discrimination claims, the Government ar-
 gues that we do not have jurisdiction over this appeal be-
 cause it is a “mixed” case involving an MSPB appeal of a
 personnel action and an allegation that the personnel ac-
 tion 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 ad-
 verse action prompted, in whole or in part, by the employ-
 ing 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 Discrimina-
 tion, 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 dis-
 crimination claims, we have jurisdiction over his appeal.
                               II
     We will uphold the Board’s decision unless it is “(1) ar-
 bitrary, 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) “demon-
 strate that the penalty imposed was reasonable in light of
 the relevant factors set forth in Douglas v. Veterans Ad-
 min[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 ev-
 idence. 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 em-
 ployee establishes this prima facie case of reprisal for whis-
 tleblowing, 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 dis-
 closure.’” 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 deci-
      sion; and [3] any evidence that the agency takes
      similar actions against employees who are not
      whistleblowers but who are otherwise similarly sit-
      uated.
 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 ev-
 idence of his PTSD. 2 Specifically, Mr. Higgins asserts that



      2  Mr. Higgins’s opening brief raises as separate is-
 sues 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 improp-
 erly discounted his PTSD. See Appellant’s Br. 26–33. In-
 deed, 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 dis-
 counted 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 im-
 pact 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. Hig-
 gins’s PTSD was one of several mitigating factors consid-
 ered by both the agency and the Board. Indeed, the Board
 recognized that Mr. Higgins’s PTSD was severe and sub-
 stantially limited one or more of his major life activities.
 Decision, 2018 MSPB LEXIS 2040, at *37. But even ac-
 cepting 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 reasonable-
 ness given the agency’s stated goal of protecting its employ-
 ees from workplace violence. As we have repeatedly held,
 the Board’s role in reviewing an agency’s penalty is re-
 stricted 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 con-
 cluding 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 offi-
 cial, considered Mr. Higgins’s PTSD as a mitigating factor
 in determining the reasonableness of Mr. Higgins’s sus-
 pension. 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 im-
 munize disabled employees from discipline for their mis-
 conduct in the workplace,” and (2) “an agency is never
 required to excuse a disabled employee’s violation of a uni-
 formly-applied, job-related rule of conduct, even if the em-
 ployee’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, bal-
 anced that factor against the seriousness of the sustained
 charges and other Douglas factors, and concluded that re-
 moval was a reasonable and appropriate penalty in view of
 the VAMC’s “top priority” to keep its employees safe, “es-
 pecially 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. Hig-
 gins’s medical evidence, ignoring his doctor’s testimony
 completely.” Appellant’s Br. 30, 32–33. Neither case sup-
 ports 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 pro-
 vided “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 be-
 havior.” Id. at 1356 (citations omitted).
      Here, by contrast, both the agency’s deciding official
 and the Board acknowledged Mr. Higgins’s PTSD and ex-
 pressly 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. Hig-
 gins, 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 symp-
 toms. 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 perma-
 nent.” 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 re-
 sponded 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 diag-
 nosis 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 inca-
 pacity.” 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 behav-
 ioral 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 reasonable-
 ness 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 of-
 ficial and the Board expressly considered Mr. Higgins’s
 PTSD as a mitigating factor in assessing the reasonable-
 ness 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 (cita-
 tion 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 contin-
 ued 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/de-
 fault.aspx?fl=2018-2352.mp3.
     In sum, neither Malloy nor Bal provides a basis to va-
 cate 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 reasonable-
 ness of Mr. Higgins’s removal.
                               IV
     Mr. Higgins also asserts that the Administrative Judge
 abused his discretion by excluding testimony of Mr. Rees-
 man and Ms. Depperman regarding an institutional mo-
 tive to retaliate that was material to Mr. Higgins’s
 whistleblower defense. “Procedural matters relative to dis-
 covery and evidentiary issues fall within the sound discre-
 tion 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 pre-
 cisely 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 institu-
 tional 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 con-
 versations with Mr. Ambrose, Ms. Andrea Baumer,
 Ms. Jennifer Fann, and Mr. Goode . . . under the impres-
 sion and belief that all of the aforementioned had filed ad-
 verse 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 re-
 taliate, it appears to rely on the animus of other VAMC em-
 ployees to establish such a motive, rather than any
 firsthand knowledge unique to Mr. Reesman. See id. In-
 deed, Mr. Higgins’s proffer recognizes that though
 Mr. Reesman proposed Mr. Higgins’s removal, Mr. Rees-
 man 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 fos-
 tering) 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 ex-
 plicitly proffer Mr. Reesman to testify regarding an insti-
 tutional motive to retaliate, we conclude that the
 Administrative Judge did not abuse his discretion in ex-
 cluding Mr. Reesman’s testimony.
      Turning to the Administrative Judge’s exclusion of
 Ms. Depperman, Mr. Higgins argues that her excluded tes-
 timony would have “provid[ed] further circumstantial evi-
 dence of an institutional motive to retaliate,” by nature of
 her position as “an Agency official who influenced the deci-
 sion 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 tes-
 timony as providing “further circumstantial evidence,”
 however, Mr. Higgins suggests that her testimony was rep-
 etitious of other proffered testimony. Indeed, the Adminis-
 trative 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 testi-
 mony as “irrelevant and/or redundant.” J.A. 108.
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 HIGGINS v. DVA                                         17



                        CONCLUSION
     We have considered Mr. Higgins’s remaining argu-
 ments and do not find them persuasive. For the foregoing
 reasons, we affirm the Board’s decision.
                        AFFIRMED
                           COSTS
     No costs.
