       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                     DAVID BAL,
                      Petitioner

                           v.

           DEPARTMENT OF THE NAVY,
                    Respondent
              ______________________

                      2017-1200
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. SF-0752-15-0442-I-1.
                ______________________

               Decided: March 30, 2018
               ______________________

   JENNIFER H. WU, Paul, Weiss, Rifkind, Wharton &
Garrison LLP, New York, NY, argued for petitioner.

    ADAM E. LYONS, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by
CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., L. MISHA
PREHEIM, RENÉE BURBANK.
                 ______________________

   Before NEWMAN, MAYER, and STOLL, Circuit Judges.
2                                              BAL   v. NAVY



    Opinion for the court filed by Circuit Judge STOLL.
    Dissenting opinion filed by Circuit Judge MAYER.
STOLL, Circuit Judge.
    David Bal appeals the final decision of the Merit
Systems Protection Board sustaining his removal from
the Navy. Mr. Bal argues that the Board improperly
discounted his medical evidence of depression in assessing
the reasonableness of his removal and failed to consider
other relevant mitigating factors under Douglas v. Veter-
ans Administration, 5 M.S.P.B. 313 (1981). We agree.
For the reasons stated below, we vacate and remand the
Board’s final decision for further proceedings consistent
with this opinion.
                        BACKGROUND
    Mr. Bal was employed by the Navy as a Materials En-
gineer at the Naval Air Weapons Center, Surface and
Strike Warfare Analysis Branch, in China Lake, Califor-
nia for over thirteen years. His daily responsibilities
required him to complete assignments at different work
locations. As of June 2014, Mr. Bal was assigned to a
project with the Evolving Sea Sparrow Missile (ESSM)
project, and he was assigned a workspace in the ESSM
lab as well as a workspace in another building to complete
administrative tasks. It is undisputed that prior to
October 2014, Mr. Bal’s performance was rated as “fully
successful (or equivalent) or higher.” J.A. 145.
    In October 2014, however, Mr. Bal’s supervisor, Cal-
vin Martin, requested an evaluation of Mr. Bal’s perfor-
mance, after which he learned that Mr. Bal had not been
reporting regularly to his assigned duty stations.
Mr. Martin attempted to contact Mr. Bal at his assigned
station but failed to locate him there. Mr. Bal was ulti-
mately reached at home, and Mr. Martin requested an in-
person meeting to discuss Mr. Bal’s work performance
and attendance.
BAL   v. NAVY                                           3



    That meeting occurred on November 4, 2014. During
the meeting, Mr. Bal admitted that he had lost focus in
his work assignments. Mr. Bal also admitted that, de-
spite reporting otherwise on his timecards, he was not
regularly attending work and was sometimes at home
during work hours. Mr. Bal explained that he was deal-
ing with marital problems, which led to his absences and
to misreporting his time. After learning of Mr. Bal’s
marital strife, Mr. Martin ended the meeting and referred
Mr. Bal to the employee assistance program.
     After the November 4, 2014 meeting, Mr. Bal began
reporting to work regularly and began making progress
on his assigned tasks. Fearful that Mr. Bal might still
have unresolved emotional issues and might be a danger
to himself or others, Mr. Martin placed Mr. Bal on admin-
istrative leave and referred Mr. Bal to a psychologist,
Dr. Kevin Seymour. On December 17, 2014, Mr. Bal
emailed Mr. Martin and Kimberly Charlon, a human
resources advisor, regarding his work performance and
attendance. Mr. Bal apologized for his performance and
explained that he was suffering from personal problems
that affected his emotional well-being. Mr. Bal explained,
however, that he had begun to practice good work habits
and welcomed Dr. Seymour’s evaluation. Mr. Bal also
estimated that he missed and misreported a total of
405 hours, but he offered to pay back the time with annu-
al leave.
    As the Navy recommended, Mr. Bal began counseling
with Dr. Seymour in December 2014. In a January 8,
2015 report, Dr. Seymour explained that he had seen
Mr. Bal for two sessions. Dr. Seymour stated that in his
medical opinion, Mr. Bal was “neither a danger to himself
or to others” and that “the probability of danger to
[him]self and/or others is extremely low and therefore not
a concern.” J.A. 171. Dr. Seymour opined, however, that
“Mr. Bal ha[d] been quite depressed for many months
both as a consequence of his job/career and as a conse-
4                                                   BAL   v. NAVY



quence of long standing marital problems.” Id. Addition-
ally, Dr. Seymour’s report reflected that Mr. Bal had
“problems on the job regarding his sense of purpose and
value” and that Mr. Bal believed that “this suggested that
he was not valued by the Navy and reflected feelings he
had/has outside of work.” Id. Dr. Seymour connected
Mr. Bal’s depression to his misconduct:
    As a result [Mr. Bal’s] depression grew worse and
    he began to spend more time at his other (CAO)
    office. He started coming in late, even missing
    whole days and realized that no one seemed to
    care or notice. He again felt that this reflected the
    Navy’s lack of interest in him or his work, exacer-
    bating his depression. He described how he [was]
    slipping into “missing lots of days.”
Id. Based on his evaluation, Dr. Seymour diagnosed
Mr. Bal with “major depression.” Id.
    Mr. Bal continued counseling with Dr. Seymour. In a
February 7, 2015 report, Dr. Seymour reported that
Mr. Bal continued to suffer from major depression and
stated that Mr. Bal’s “depression and pending divorce
clearly effect [sic] his self-destructive behavior, i.e., avoid-
ing work, and lying on his time cards.” J.A. 190. Con-
sistent with his previous report, Dr. Seymour stated that
during his absences without leave, Mr. Bal reported
feeling “miserable,” “meaningless,” and “trapped” at home
and at work, which “became worse as [Mr. Bal] avoided
more and more of both work and his marriage.” Id.
Dr. Seymour also reported that Mr. Bal was receiving
regular and continuing treatment for his “profound de-
pression.” Id.
    Mr. Martin proposed to remove Mr. Bal from the Navy
on January 23, 2015 for improper coding of time and
attendance records and for absence without leave
(AWOL). The proposal was sent to the deciding official at
the Navy, Jacqueline Walters, to whom Mr. Bal formally
BAL   v. NAVY                                            5



replied. Mr. Bal argued in his response that his miscon-
duct was related to his depression. Mr. Bal explained,
however, that he was seeking treatment and was sur-
prised at the Navy’s proposal to remove him given the
Navy’s referral to counseling. In his response, Mr. Bal
requested retroactive benefits under the Family and
Medical Leave Act (FMLA) to cover his absences, arguing
that he was entitled to these benefits due to his depres-
sion and resulting inability to request FMLA earlier.
After reviewing Mr. Bal’s submissions, Ms. Walters
denied Mr. Bal’s FMLA request, sustained both charges,
and upheld Mr. Bal’s removal. Ms. Walters’s written
decision did not mention Mr. Bal’s depression or
Dr. Seymour’s letters as factors she considered.
    Mr. Bal appealed his removal to the Board. Mr. Bal
also requested that Dr. Seymour provide a current report
regarding his mental status and his response to treat-
ment. On June 15, 2015, Dr. Seymour reported that
Mr. Bal had been seen for several sessions and that “these
evaluations suggested that Mr. Bal was of superior intel-
ligence, had serious marital problems, and was somewhat
naïve about the problems he was facing.” J.A. 950.
Dr. Seymour explained, however, that Mr. Bal had devel-
oped plans to address his marital issues. Dr. Seymour’s
report also reflected Mr. Bal’s statement that he wanted
to return to the Navy but the Navy considered him un-
trustworthy and in need of extensive supervision.
Dr. Seymour ultimately opined that “[t]est results and
clinical experience suggest that [Mr. Bal] is clearly not a
threat to himself or anyone else,” and that Mr. Bal’s
“recognition of his problems and his remorse suggest that
he is not likely to repeat the problem that has put him in
the current situation.” Id. Further, Dr. Seymour believed
that “Mr. Bal had made substantial changes in his life,”
and stated that Mr. Bal “is not likely to need much super-
vision as he apparently is competent at work and has
rejuvenated dedication.” J.A. 950–51. Dr. Seymour
6                                              BAL   v. NAVY



concluded: “Mr. Bal has made substantial progress over
the last several months[,] which he is likely to sustain as
his depression has lifted with this clear wake-up call in
his life.” J.A. 951.

     Thereafter, the Administrative Judge conducted a
hearing.       At the hearing, the deciding official,
Ms. Walters, testified that she considered Dr. Seymour’s
January and February 2015 letters, but found that they
failed to provide any indication that Mr. Bal was incapaci-
tated for purposes of his FMLA request. Ms. Walters also
testified that she considered the Douglas factors in her
removal decision but found the first factor, seriousness of
the charges, the “most significant” factor. J.A. 1070 at
118:23–25. Ms. Walters stated that she weighed the first
factor “heavily” because Mr. Bal’s admission of not being
at work for 405 hours and filling out his timecard inap-
propriately were “egregious” in her mind. J.A. 1071 at
119:1–6. Ms. Walters testified that she considered the
role depression played in Mr. Bal’s misconduct, but ex-
plained that Dr. Seymour’s letters “didn’t say that he was
incapacitated.” J.A. 1115 at 163:7–11. Additionally,
Ms. Walters testified that she considered Mr. Bal’s re-
sponse to his proposed removal and his potential for
rehabilitation but that “[b]ased on [] what Mr. Bal had
put in his response, a person, in [her] opinion, can’t be
rehabilitated unless they admit and take responsibility
for their actions. And Mr. Bal did not do that.” J.A. 1071
at 119:19–23.
    The Administrative Judge affirmed Mr. Bal’s removal.
The Administrative Judge found that the agency proved
the improper coding and AWOL charges and proved a
nexus between the charges and the efficiency of service.
Regarding the reasonableness of Mr. Bal’s removal penal-
ty, the Administrative Judge stated that “[Ms.] Walters
explained her decision in terms of the salient Douglas
factors . . . and I see no reason to disturb the agency’s
assessment of these factors.” J.A. 40. In response to
BAL   v. NAVY                                                7



Mr. Bal’s argument that his evidence of potential for
rehabilitation and mental impairment had been ignored,
the Administrative Judge found that “these contentions
approach frivolity or ring hollow in light of other material
in the record—e.g., there was no medical evidence the
appellant’s capacity to form intent had been compro-
mised.”    Id.   The Administrative Judge also found
Mr. Bal’s appeal distinct from other cases, stating:
      [H]ere [Mr. Bal] failed to offer persuasive evidence
      that his medical condition played a part in the
      charged misconduct—in fact, the medical evidence
      offered did not establish incapacity, [Mr. Bal]
      failed to establish his medical condition ever rose
      to the level of incapacity, and . . . there was not
      compelling evidence of medical impact around the
      time of the charged misconduct. Thus, I conclude
      [Mr. Bal’s] medical condition was not a significant
      mitigating factor under the circumstances.
J.A. 41 n.5. The Administrative Judge also agreed with
Ms. Walters’s testimony that Mr. Bal did not have reha-
bilitation potential because he had not taken responsibil-
ity for his actions.
     Mr. Bal appealed the Administrative Judge’s decision
to the full Board, and the Board affirmed. The Board
found that “[a]lthough [Dr. Seymour’s] reports state that
[Mr. Bal] suffers from major depression as a result of his
marital problems and related feelings of worthlessness,
they do not establish that he was incapacitated from
performing his duties or from requesting leave during the
period at issue.” J.A. 6. The Board noted that Dr. Sey-
mour’s reports stated that Mr. Bal’s depression and
pending divorce clearly affected his self-destructive be-
havior, i.e., avoiding work and lying on his timecards, but
held that “contrary to [Mr. Bal’s] claim on re-
view, . . . that statement does not equate to a finding of
incapacitation.” Id. Regarding the reasonableness of Mr.
8                                                BAL   v. NAVY



Bal’s removal in light of his depression, the Board found
that “none of the evidence [Mr. Bal] submitted on this
issue was from at or near the time of the misconduct. Nor
was it persuasive as to the effect of [Mr. Bal’s] depression
on the improper coding of his time and attendance records
or his AWOL.” J.A. 14. The Board did not otherwise
comment on Mr. Bal’s medical evidence of depression or
consider Mr. Bal’s potential for rehabilitation.

   Mr. Bal appeals. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
                        DISCUSSION
     We must affirm the Board’s final decision unless it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c); see also Malloy v. U.S. Postal
Serv., 578 F.3d 1351, 1356 (Fed. Cir. 2009).

   To take an adverse action against an employee, an
agency must establish three criteria:
    First, it must establish by preponderant evidence
    that the charged conduct occurred. 5 U.S.C.
    § 7701(c)(1)(B). Second, it must show a nexus be-
    tween that conduct and the efficiency of the ser-
    vice. Id. § 7513(a). Third, it must demonstrate
    that the penalty imposed was reasonable in light
    of the relevant factors set forth in Douglas . . . .
Malloy, 578 F.3d at 1356. Mr. Bal does not dispute that
the first two factors have been met. At issue in this
appeal is the third factor—the reasonableness of Mr. Bal’s
removal in light of his evidence related to Douglas factors
seven (consistency of the penalty with any applicable
agency table of penalties), ten (potential for the employ-
ee’s rehabilitation), eleven (mitigating circumstances such
BAL   v. NAVY                                            9



as unusual job tensions, personality problems, mental
impairment, harassment, or bad faith, malice or provoca-
tion on the part of others involved in the matter), and
twelve (the adequacy and effectiveness of alternative
sanctions to deter such conduct in the future by the
employee or others). See Douglas, 5 M.S.P.B. at 332.
    Mr. Bal argues that the Board discounted his evidence
of depression as a mitigating factor in determining the
reasonableness of his removal under Douglas. Mr. Bal
argues that the Board discounted this evidence based on
its erroneous findings that: (1) “none of the evidence
[Mr. Bal] submitted on this issue was from at or near the
time of the misconduct,” and (2) the evidence was not
“persuasive as to the effect of [Mr. Bal’s] depression on
the improper coding of his time and attendance records or
his AWOL.” J.A. 14. He also argues that the Board relied
on an improperly high standard for considering depres-
sion as a mitigating factor—i.e., that it must establish
incapacity.
    We agree with Mr. Bal that the Board’s rejection of
his evidence of depression as mitigating evidence was
predicated on findings unsupported by substantial evi-
dence. First, the Board’s finding that none of Mr. Bal’s
medical evidence was from at or near the time of his
misconduct is plainly inconsistent with the record.
Mr. Bal’s misconduct occurred between June and Novem-
ber 2014. At the Navy’s suggestion, Mr. Bal began treat-
ment with Dr. Seymour in December 2014. Dr. Seymour’s
January 8, 2015 report stated that “Mr. Bal ha[d] been
quite depressed for many months” and suggested that
Mr. Bal’s depression began with a work incident in
Spring 2014, preceding the time period of Mr. Bal’s mis-
conduct.    J.A. 171 (emphasis added).           Moreover,
Dr. Seymour directly linked Mr. Bal’s misconduct to his
depression, stating that “[a]s a result” of Mr. Bal feeling
undervalued at work and at home, “his depression grew
worse and he began to spend more time at his other
10                                             BAL   v. NAVY



(CAO) office. He started coming in late, even missing
whole days and realized that no one seemed to care or
notice.” Id. Moreover, Dr. Seymour’s February 7, 2015
report stated that Mr. Bal’s “depression and pending
divorce clearly effect [sic] his self-destructive behavior,
i.e., avoiding work, and lying on his time cards.” J.A. 190
(emphasis added).
    This evidence corroborates Mr. Bal’s claim that his
misconduct during the relevant period was due to his
depression. Though Dr. Seymour’s reports are dated after
the period in question, Dr. Seymour unequivocally dated
Mr. Bal’s depression to the relevant period and directly
linked his depression to the charged misconduct. As the
Board has recognized in other cases, “[w]here, as here,
proximity in time, testimony, or other evidence provides
the requisite link to the relevant period, the subsequent
medical evidence can be very probative of a prior medical
condition.”      Bowman v. Small Bus. Admin.,
122 M.S.P.R. 217, 225 (2015). Thus, the Board erred in
discounting Mr. Bal’s medical evidence based on its
finding that the evidence was not from at or near the time
period in question.
    Second, the Board erred to the extent it required
Mr. Bal’s depression to be so severe as to incapacitate
him. The Board found that Mr. Bal’s medical evidence did
not establish incapacity. Presumably, this finding related
to Mr. Bal’s FMLA claim. That finding, however, infected
the Board’s findings regarding the reasonableness of
Mr. Bal’s removal under the Douglas factors because the
Board repeated its finding regarding incapacity in its
Douglas analysis. But Douglas merely requires consider-
ation of whether “mental impairment” was a mitigating
factor to the charged misconduct. Douglas, 5 M.S.P.B. at
332. It does not require that the impairment result in full
mental incapacitation. The Government conceded as
much during oral argument. See Oral Arg. at 20:04–
40, http://oralarguments.cafc.uscourts.gov/default.aspx?fl
BAL   v. NAVY                                           11



=2017-1200.mp3. Moreover, we have explained that
“[w]hen mental impairment or illness is reasonably sub-
stantiated, 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, 578 F.3d
at 1356 (emphasis added). Thus, the Board erred in
discounting Mr. Bal’s evidence based on the fact that
Mr. Bal’s depression did not result in incapacitation.
    Based on these erroneous findings, the Board sus-
tained Mr. Bal’s removal without any analysis of his
medical evidence of depression and the impact his depres-
sion had on his misconduct. The Board’s final decision is
devoid of any substantive discussion of Dr. Seymour’s
reports diagnosing Mr. Bal with major depression and
specifically linking his depression to the misconduct
leading to his proposed removal.
    In Malloy, we held that a remand was appropriate
under similar circumstances. In that case, the record
contained undisputed medical evidence that the employee
had been diagnosed and treated for depression. Id.
at 1355. The employee submitted that evidence to the
Board and argued that her depression was a mitigating
factor under Douglas. The Board found “the appellant’s
assertions in this regard not credible and unsupported by
the record” without mentioning any of the medical docu-
ments other than generically stating that it had “reviewed
her submissions.” Id. at 1356. The Board further found
that, despite the medical evidence, the employee “failed to
establish any medical reason or provide any medical
documentation that could justify or excuse her behavior.”
Id. at 1357. On appeal, we remanded the Board’s decision
because it “contain[ed] no analysis of the medical evi-
dence, although the medical evidence in the record is
voluminous and on its face may relate to [the employee’s]
inappropriate behavior.” Id.
12                                             BAL   v. NAVY



    Here, the Administrative Judge acknowledged
Dr. Seymour’s reports and Mr. Bal’s depression diagnosis.
The Administrative Judge noted that the deciding official,
Ms. Walters, considered the “salient Douglas factors” and,
without discussing the evidence, concluded that there was
no reason to disturb the agency’s assessment of those
factors. J.A. 40. The Administrative Judge also discount-
ed Mr. Bal’s evidence of depression as mitigating evidence
because it “did not establish incapacity” or show how his
depression played a part in the charged misconduct.
J.A. 41 n.5. As we have explained, these findings are not
supported by the record. On review, the Board com-
pounded the Administrative Judge’s errors by affirming
the initial decision without any analysis of Dr. Seymour’s
reports, which diagnosed Mr. Bal with depression and
directly linked his misconduct to his depression. “It is
established that mental impairment, when present,
warrants consideration and weight in assessing the
reasonableness of the action taken.” Malloy, 578 F.3d
at 1357. Given Mr. Bal’s uncontroverted evidence that his
depression caused his misconduct, the Board should have
explained why his evidence of mental impairment was
insufficient to establish a mitigating circumstance under
Douglas. Id.
    In addition, the Board completely ignored Douglas
factor ten and Mr. Bal’s evidence of rehabilitation. Alt-
hough the Administrative Judge cited Ms. Walters’s
testimony regarding rehabilitation in his initial decision
and found it “reasonable,” see J.A. 41, the Board affirmed
without any analysis of Mr. Bal’s evidence of rehabilita-
tion. The record shows that Mr. Bal promptly returned to
work and made improvement in his assignments. There
was also evidence that Mr. Bal showed remorse by apolo-
gizing to his supervisors and wanting “to make amends”
by offering to repay his time with annual leave. J.A. 220.
Mr. Bal also submitted Dr. Seymour’s February 7, 2015
report, which explained that Mr. Bal understood the
BAL   v. NAVY                                            13



consequences of his actions and continued to seek “coun-
seling to address the profound depression he now recog-
nizes as real and a function of both his current reality and
his past.” J.A. 190–91. Dr. Seymour’s June 15, 2015
report also stated that Mr. Bal had shown great im-
provement and made substantial behavioral changes.
Specifically, Dr. Seymour opined that “[Mr. Bal’s] recogni-
tion of his problems and his remorse suggest that he is
not likely to repeat the problem that has put him in the
current situation,” that Mr. Bal was “not likely to need
much supervision as he apparently is competent at work
and has rejuvenated dedication,” and that “Mr. Bal has
made substantial progress over the last several months []
which he is likely to sustain as his depression has lifted
with this clear wake-up call in his life.” J.A. 950–51. This
is competent evidence relevant to Mr. Bal’s potential for
rehabilitation under Douglas factor ten, and the Board
erred by completely ignoring it.
     Similarly, the Board’s final decision contains no anal-
ysis of Mr. Bal’s arguments regarding Douglas factors
seven (consistency of the penalty with any applicable
agency table of penalties) and twelve (the adequacy and
effectiveness of alternative sanctions to deter such con-
duct in the future by the employee or others). Although
the Board expressed satisfaction that the Administrative
Judge “reviewed the factors the deciding official consid-
ered in reaching her decision,” J.A. 13, Douglas factors
seven and twelve, and the evidence regarding them, were
not considered. The Board’s mere statement that it
considered all the relevant Douglas factors gives insuffi-
cient consideration of the evidence relevant to these
additional mitigating Douglas factors.         See Malloy,
578 F.3d at 1357 (remanding after finding that
“[a]lthough the [Administrative Judge] stated that all of
the Douglas factors were considered, the eleventh Doug-
las factor . . . is not mentioned and is not shown to have
been considered”).
14                                             BAL   v. NAVY



    We appreciate the seriousness of Mr. Bal’s admitted
misconduct. Indeed, charges of AWOL and falsifying time
reports are no small matters. And we express no opinion
as to the appropriate penalty ultimately imposed for such
conduct on remand. Nor do we weigh Mr. Bal’s mitigating
evidence in the first instance. Instead, we hold that when
evidence is presented that is relevant to mitigating cir-
cumstances under Douglas, such evidence must be ad-
dressed by the Board. In this case, we hold that the
Board did not meet that obligation. On remand, if the
Board finds that such evidence is unpersuasive or insuffi-
cient to mitigate Mr. Bal’s misconduct and the penalty
imposed, the Board should so state and articulate its
reasoning for its holding.
                        CONCLUSION
    Accordingly, we vacate and remand the Board’s deci-
sion for further proceedings consistent with this opinion.
              VACATED AND REMANDED
                            COSTS
     Costs to Petitioner.
       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                 ______________________

                      DAVID BAL,
                       Petitioner

                            v.

           DEPARTMENT OF THE NAVY,
                    Respondent
              ______________________

                       2017-1200
                 ______________________

   Petition for review of the Merit Systems Protection
Board in No. SF-0752-15-0442-I-1.
                ______________________
MAYER, Circuit Judge, dissenting.
     David Bal had two separate work sites at the Navy’s
sensitive China Lake facility, which apparently allowed
him to be absent without leave and in dereliction of his
duties for the equivalent of more than ten weeks in a four-
month period before his supervisors noticed. He claims he
was depressed over personal matters and because the
Navy did not value him enough to notice that he was
absent. Yet he studiously showed up to falsify his time
and attendance records to keep his scheme going. I would
affirm his dismissal without further ado.
