[00:00:00] Speaker 02:
Good afternoon.

[00:00:02] Speaker 02:
The case we're hearing this afternoon is number 17-1200, Ball against the Navy.

[00:00:08] Speaker 02:
Ms.

[00:00:08] Speaker 02:
Wu.

[00:00:09] Speaker 00:
Thank you, Your Honors.

[00:00:10] Speaker 00:
May it please the Court?

[00:00:11] Speaker 00:
I am Jennifer Wu for the petitioner, Mr. David Ball.

[00:00:17] Speaker 00:
What we are asking for in this case is for Mr. Ball to be given the opportunity to get back the job that he had for nearly 14 years.

[00:00:25] Speaker 00:
He was a materials engineer with the Naval Warfare Center and

[00:00:29] Speaker 00:
China Lake, California.

[00:00:31] Speaker 00:
Since his removal, he has not been employed and continues to reside there because that is where his family is.

[00:00:38] Speaker 00:
There appears to be no dispute that Mr. Bell was suffering some sort of issues which resulted in him not going to work and improperly coding his time.

[00:00:48] Speaker 00:
We believe that the board abused its discretion in imposing the penalty of removal because it discounted the significant mitigating factor of his depression.

[00:00:59] Speaker 00:
The only evidence in the record is from the psychologist, as to his mental illness, was from the psychologist Dr. Seymour.

[00:01:07] Speaker 01:
Am I correct in understanding that Dr. Seymour was a doctor that the Navy referred Mr. Bell to?

[00:01:14] Speaker 00:
Yes.

[00:01:15] Speaker 00:
The Navy referred Mr. Bell to Dr. Seymour after the first meeting that he had regarding his absences.

[00:01:22] Speaker 00:
They noticed his absences, they being the government, noticed it.

[00:01:25] Speaker 00:
on November 3rd, and he had a meeting about the absences immediately thereafter on November 4th, at which he was referred to the Civilian Health Program, and then he was referred to Dr. Seymour, who he then saw in December as well as January.

[00:01:40] Speaker 00:
Dr. Seymour then provided three letters, which is the sum total of the medical evidence in this case.

[00:01:46] Speaker 00:
In each of the letters, he ties Mr. Bell's depression from his absences, ties his depression to the absences he had.

[00:01:54] Speaker 00:
but both the agency and the board discounted that evidence, finding that that evidence was not near the time of his misconduct and also was not persuasive evidence that he was depressed at the time of his misconduct.

[00:02:08] Speaker 00:
What we are asking for here is that the board, this case be remanded to the board to properly consider that evidence in light of the fact that Dr. Seymour did in fact tie the depression to the period of misconduct.

[00:02:21] Speaker 00:
So starting with the first letter on January 8, 2015 at appendix 171, Dr. Seymour said that Mr. Bell has been depressed for many months as a consequence of his job career and as a consequence of his long-standing marital problems.

[00:02:37] Speaker 01:
I apologize, but what was the appendix page number you said?

[00:02:41] Speaker 01:
171.

[00:02:41] Speaker 01:
171.

[00:02:41] Speaker 00:
There are three letters from Dr. Seymour.

[00:02:44] Speaker 00:
They appear appendix 171, 190, and 950.

[00:02:49] Speaker 00:
So those are the three letters.

[00:02:51] Speaker 00:
In the very first letter on January 8, 2015, which is summarizing the meetings that Dr. Seymour had with Mr. Bell prior to this letter, he states that Mr. Bell was upset in the spring, which would have been prior to his absences, the spring of 2014.

[00:03:12] Speaker 00:
And he believed that he was not valued by the Navy.

[00:03:14] Speaker 00:
And here, Dr. Seymour says, as a result, his depression grew worse.

[00:03:20] Speaker 00:
and he began to spend more time at the other office.

[00:03:22] Speaker 00:
He started coming in late, even missing whole days, and realized no one seemed to care or notice.

[00:03:27] Speaker 00:
He again felt this reflected the Navy's lack of interest in him or his work, exacerbating his depression.

[00:03:33] Speaker 00:
It appears to us, at least, that this letter that thus indicates that Dr. Seymour did believe that Mr. Bell was depressed at the time of the misconduct.

[00:03:45] Speaker 00:
In the second letter, at appendix 190,

[00:03:48] Speaker 00:
The second full paragraph in the letter states that Mr. Bell's depression and pending divorce clearly affect his self-destructive behavior, i.e., avoiding work and lying on his time cards.

[00:04:01] Speaker 00:
Again, Dr. Seymour is saying that the depression is what caused the misconduct.

[00:04:07] Speaker 00:
Nevertheless, the agency did not consider depression to be a mitigating factor for the misconduct.

[00:04:14] Speaker 00:
And the reason for this appears to be that Mr. Bell had attempted to make an FMLA claim before the board and before the agency seeking to use FMLA leave for this period of depression.

[00:04:26] Speaker 00:
He ultimately was not successful in it, and we are not challenging that finding here.

[00:04:31] Speaker 00:
But the agency determined that the mental illness was not a significant mitigating factor because none of the letters said that Mr. Bell was incapacitated.

[00:04:41] Speaker 01:
Now, that doesn't go to the Douglas factor.

[00:04:43] Speaker 01:
I take it I'm making your point for you right now.

[00:04:45] Speaker 01:
But I think that that means your point, if I understand it correctly, is that under Douglas, it's just a consideration of the medical condition here being depression as opposed to requiring something more, which is what was required for that FMLA issue.

[00:05:02] Speaker 01:
Correct.

[00:05:04] Speaker 00:
Exactly right.

[00:05:04] Speaker 00:
I mean, I think we believe that the agency conflated those two standards because those two claims were up before the agency at the same time.

[00:05:11] Speaker 00:
So they determined he was not incapacitated for FMLA and did not consider mental impairment, which is a lesser standard, in determining whether the penalty of removal should be sustained.

[00:05:22] Speaker 00:
The reason that we know that is because during the hearing, the deciding officer, Ms.

[00:05:27] Speaker 00:
Walters, was asked whether she considered depression as a mitigating factor in imposing penalty.

[00:05:33] Speaker 00:
This appears at appendix 1114 and 1115.

[00:05:38] Speaker 00:
She was first asked by the administrative judge, Flick, how was it that you considered Mr. Bell's depression in reaching the decision to remove him?

[00:05:48] Speaker 00:
And her initial answer was, well, I didn't so much look at his depression.

[00:05:54] Speaker 00:
I looked at the overall letters that came from Dr. Seymour.

[00:05:58] Speaker 00:
And then she talks about incapacity with respect to FMLA.

[00:06:02] Speaker 00:
The administrative judge comes back to it and says, did you consider how, if at all, Mr. Bell's depression played any role in the misconduct that was before you?

[00:06:11] Speaker 00:
She then says, yes.

[00:06:13] Speaker 00:
This is the deciding officer, but follows it with, I also looked at the fact the letters didn't say that he was incapacitated.

[00:06:21] Speaker 00:
So then the administrative judge says again, I guess I'm just trying to figure this out.

[00:06:24] Speaker 00:
Did you give any mitigating weight to the fact that Mr. Bell identified that he suffered from depression?

[00:06:29] Speaker 00:
She finally says, yes.

[00:06:31] Speaker 00:
It seems clear to us from the record that that conclusory yes doesn't support the agency's position that they applied a lesser standard than in capacity in determining whether Mr. Bell's depression was a mitigating factor as to his misconduct.

[00:06:48] Speaker 00:
And on that basis, we believe that the only evidence in the record is that he was depressed at the time of the misconduct, and the agency's finding otherwise is an abuse of discretion.

[00:06:59] Speaker 00:
Now, when it comes to how the board analyzed that factor, the board simply adopted the agency's determination that the depression was not near in time to the misconduct and did not cause the misconduct.

[00:07:13] Speaker 00:
The board didn't go back to the letters and reanalyze whether there was a direct relationship.

[00:07:19] Speaker 00:
Because of that, we believe that the board abuses discretion.

[00:07:23] Speaker 01:
Just to make sure, you're going kind of fast.

[00:07:25] Speaker 01:
So just make sure I'm following you.

[00:07:27] Speaker 01:
So when you're talking about the board, do you mean the initial decision or the final decision?

[00:07:32] Speaker 00:
The final decision.

[00:07:34] Speaker 00:
So the board at appendix 14 said that the depression was not a mitigating factor because it wasn't clear that the effect of depression is what led to the misconduct.

[00:07:47] Speaker 00:
And it also said that it wasn't close in time to the actual misconduct itself.

[00:07:53] Speaker 01:
And, you know- Do you think that was based on the witness testimony as opposed to looking at Dr. Seymour's letters themselves?

[00:08:01] Speaker 00:
Correct.

[00:08:01] Speaker 00:
There's been no real discussion of Dr. Seymour's letters before the board.

[00:08:06] Speaker 00:
And the government continues to argue in its red brief that there was no discussion of incapacity in the letters.

[00:08:14] Speaker 00:
seeming to say that the proper standard is incapacity as opposed to mental impairment, which obviously I think is the law.

[00:08:22] Speaker 00:
So as a result, we think that Mr. Bell should be given a chance to present his case in the context of this medical evidence that his misconduct was tied to depression and that there should be a balancing of that before the board.

[00:08:39] Speaker 01:
I recall in your briefs that you referred to cases that supported the idea that incapacity is not required for the Douglas factors.

[00:08:47] Speaker 01:
Instead, maybe our court has said that it's not quite that narrow.

[00:08:51] Speaker 01:
What cases were you relying on?

[00:08:53] Speaker 00:
There have been no cases that specifically say that incapacity is not the right standard, but all the cases that we've seen, including Douglas, as well as Perfoy, Wensink, all of those cases refer to mental impairment.

[00:09:07] Speaker 00:
So we think that the law is clear that the standard is mental impairment, which we interpret just on the plain language to be something less than incapacity.

[00:09:17] Speaker 00:
We have not been able to find a case that says that the proper standard for Douglas factors is incapacity.

[00:09:24] Speaker 00:
It is, of course, the proper standard for determining whether FMLA leave is appropriate.

[00:09:31] Speaker 02:
So how, if we were trying to draw some lines,

[00:09:36] Speaker 02:
One of the things that obviously made an impression that they mentioned was the fact that he did realize that he wasn't coming to work and was changing the time sheets.

[00:09:48] Speaker 02:
And it looks as if they put a good deal of weight on the fact that he did have mental capacity, that he knew that something was wrong and was covering it up, and that it had gotten to be so extreme that

[00:10:06] Speaker 02:
reciting all of these contributing factors, they nonetheless felt that it was justified to terminate.

[00:10:16] Speaker 02:
Correct.

[00:10:16] Speaker 02:
Where does one find some kind of distinguishing advice or factor as to when it's gone too far?

[00:10:27] Speaker 00:
That's a very good question, Your Honor.

[00:10:28] Speaker 00:
I think that in this case, he certainly falsified his time records and was also missing from work.

[00:10:34] Speaker 00:
I think those two issues are intertwined.

[00:10:36] Speaker 00:
They both resulted from his depression.

[00:10:38] Speaker 00:
Had he simply not shown up, we probably would have come to the same place.

[00:10:43] Speaker 00:
And we know that because when the administrative judge asked the deciding officer, what if he simply not shown up for work and not falsified his records?

[00:10:51] Speaker 00:
She said she would still come to the penalty of removal.

[00:10:54] Speaker 00:
So I think in this case, if you just look at the fact that he was absent for this period of time from June to November 2014,

[00:11:02] Speaker 00:
I think the question is, when somebody has a severe or major depression, as Dr. Seymour said, and you miss a lot of work, and ironically for him, he was probably harmed by the fact it wasn't caught until November, is it appropriate to punish him by removal because it's been repeated and it's been so long?

[00:11:23] Speaker 00:
Our view is that the depression was one event that caused his absences.

[00:11:27] Speaker 00:
If you look at the facts of when he was absent, he began by being absent only two or three times a month in June.

[00:11:35] Speaker 00:
He then was absent eight times, eight or nine times in July.

[00:11:39] Speaker 00:
And in August, he was absent more.

[00:11:41] Speaker 00:
And then in September, he was absent a lot more.

[00:11:44] Speaker 00:
So this wasn't a situation where, from the very beginning, he was completely gone.

[00:11:48] Speaker 00:
He was just absent for a few days.

[00:11:50] Speaker 00:
And over time, as he was absent and as nobody called him out on it, as Dr. Seymour says,

[00:11:56] Speaker 00:
He became more depressed because he felt that no one cared about him.

[00:12:00] Speaker 00:
And that was true both at work and also at home.

[00:12:03] Speaker 00:
And then once he had the meeting, it was a wake-up call.

[00:12:06] Speaker 00:
They do care.

[00:12:07] Speaker 00:
He started seeing a counselor.

[00:12:09] Speaker 00:
He immediately went back to work.

[00:12:11] Speaker 00:
And he wanted to change his life and continues to go to counseling now.

[00:12:15] Speaker 00:
So in our view, this really is the situation of someone who had one life event that, whether it was intentional or not, he'd had a bad moment in his life.

[00:12:25] Speaker 00:
And once it was called to his attention, he did come back.

[00:12:29] Speaker 00:
With respect to your question as to whether we should treat falsification and absence from work differently, and where do we draw the line, I think we can draw some guidance from the NAVAIR instruction, which provides a table of penalties.

[00:12:42] Speaker 00:
The first offense says that you can either, for both of those instances, says that you can either impose a penalty of reprimand to removal.

[00:12:50] Speaker 00:
Obviously here, they imposed removal.

[00:12:53] Speaker 00:
The issue that we have with

[00:12:55] Speaker 00:
the analysis of the NABIR instruction is that the deciding official said that she didn't find the offenses in the table of penalties.

[00:13:03] Speaker 00:
At appendix 1117, she says that she didn't specifically see those in the table of penalties.

[00:13:10] Speaker 00:
So we know that she didn't actually look at the first offense recommendation.

[00:13:15] Speaker 00:
She just simply thought that it was so severe that she should impose the penalty of removal.

[00:13:21] Speaker 00:
We believe that the NAVAIR instruction gives guidance that in these kinds of circumstances where there's falsification and excessive time off from work, that there should be a robust consideration of the least severe penalty that is appropriate, and it's not intended to be punitive, but corrective.

[00:13:39] Speaker 00:
So I don't know if that answers your question.

[00:13:42] Speaker 02:
Well, I couldn't do any better.

[00:13:44] Speaker 02:
It's hard to tell.

[00:13:45] Speaker 02:
Let's hear from the other side.

[00:13:47] Speaker 02:
Thank you, Your Honor.

[00:13:56] Speaker 02:
Mr. Lyons.

[00:13:57] Speaker 03:
Thank you, Your Honor.

[00:13:58] Speaker 03:
May it please the Court.

[00:14:00] Speaker 03:
The deciding official and the Board considered the Douglas factors.

[00:14:05] Speaker 03:
The Board reviewed the deciding official's consideration and then reviewed the penalty that the deciding official decided upon, determined that it was within the reasonable bounds.

[00:14:16] Speaker 03:
That is what this Court's precedent and the system of federal employee discipline requires.

[00:14:21] Speaker 03:
It's not

[00:14:22] Speaker 03:
a new independent evaluation by the board, which is what Mr. Bao is asking for.

[00:14:28] Speaker 03:
Because what the deciding official did and what the board did is what is required, the decision should be affirmed.

[00:14:35] Speaker 03:
Now, we take that largely from this quote.

[00:14:37] Speaker 01:
Can I ask you a question?

[00:14:38] Speaker 01:
One of the things the board found was that Mr. Bao's medical evidence was not at or near the time of his misconduct.

[00:14:48] Speaker 01:
In looking at Dr. Seymour's letters, which I think is the only evidence of Mr. Bell's medical condition, he refers to his condition starting in the spring and that it has occurred over many months.

[00:15:06] Speaker 01:
How is that not then showing that it was at or near the time of his misconduct, which I understand to span from, I guess, June to October, November?

[00:15:16] Speaker 03:
Yes, Your Honor, the time frame is correct.

[00:15:18] Speaker 03:
And you're also correct.

[00:15:19] Speaker 03:
Those are the only evidence of his medical condition other than whatever testimony he may have given.

[00:15:25] Speaker 03:
The three letters, it's important to note the time in which they occur.

[00:15:29] Speaker 03:
The first one is January of the next year.

[00:15:32] Speaker 03:
It's already several months later.

[00:15:33] Speaker 03:
And in that letter, Dr. Seymour refers to many months of depression.

[00:15:39] Speaker 03:
There's a February letter that doesn't give a time frame, but does make the point that the depression in part is due to the fact that no one noticed the absence, which implies the depression comes before the absence.

[00:15:55] Speaker 02:
But he had two offices.

[00:15:56] Speaker 02:
Maybe they just thought he was in the other building.

[00:16:00] Speaker 03:
Well, certainly part of the problem the Navy has here is the way it's set up.

[00:16:04] Speaker 03:
it's these employees is it has to depend on them to be trustworthy, to record their time accurately, to report what they're doing because there isn't one place they're always supposed to be.

[00:16:15] Speaker 03:
And that does lead to part of why the deciding official said no, given the length of time here and the nature of the offense and the lying on the time cards, removal is the right penalty.

[00:16:25] Speaker 03:
The third report, I think, is very telling.

[00:16:28] Speaker 03:
This is in June of 2015, and it comes after the administrative judge tells Mr. Ball

[00:16:34] Speaker 03:
that the reports I've received so far don't really show this incapacity thing.

[00:16:39] Speaker 03:
Can you get another report that might clarify for me?

[00:16:43] Speaker 03:
And the June 2015 report doesn't say many months anymore.

[00:16:47] Speaker 03:
It now says several months.

[00:16:50] Speaker 03:
This panel, the Federal Circuit's been very clear.

[00:16:53] Speaker 03:
The Court doesn't

[00:16:54] Speaker 03:
engage in its own balancing of the evidence.

[00:16:56] Speaker 03:
And so I don't know that this panel should be reweighing the evidence, but worried to.

[00:17:01] Speaker 01:
But we're supposed to look at whether there's substantial evidence to support the fact finding, right?

[00:17:06] Speaker 03:
Yes, Your Honor.

[00:17:07] Speaker 01:
What about the reference to spring?

[00:17:08] Speaker 01:
One of those letters refers to a conduct that occurred in the spring that started his down slide.

[00:17:15] Speaker 01:
It might have been marriage issues.

[00:17:19] Speaker 03:
But I believe, though, it says as to the depression,

[00:17:22] Speaker 03:
We have many months in January and several months in June.

[00:17:25] Speaker 03:
I don't believe, and this is an important point that gets called out to Mr. Ball, you know, is it for the whole period or isn't it?

[00:17:32] Speaker 03:
There is evidence, and you could say, well, it could have gone either way, and perhaps it could have, but the board, the administrative official looked at it, the board looked at it, and the way they interpreted the evidence was that it fell on the side of doesn't cover the period.

[00:17:47] Speaker 03:
which leads to the board's conclusion of it doesn't cover the time.

[00:17:50] Speaker 03:
They also say in the alternative, it's also not dispositive of the issue.

[00:17:55] Speaker 03:
We don't find it convincing because of this period of it's not just that he's not coming into work.

[00:18:03] Speaker 03:
It's that he's coming in at least once a week and falsifying time parts.

[00:18:08] Speaker 03:
He's also coming in and just not doing his job.

[00:18:10] Speaker 03:
He's walking around and talking to people, giving the appearance that he's there.

[00:18:14] Speaker 03:
There's a lot of evidence that, again, sitting in the first instance, the court.

[00:18:17] Speaker 01:
I understand what you're saying.

[00:18:18] Speaker 01:
I guess my problem is I don't see that in the board's decision.

[00:18:22] Speaker 01:
In the board's decision where it talks about how Mr. Bell's medical evidence was not at the time or near his misconduct, it's pretty short.

[00:18:30] Speaker 01:
There isn't much of a discussion.

[00:18:32] Speaker 01:
I see no reference at all to the Seymour letters.

[00:18:36] Speaker 01:
I see no discussion that allows me to make, to understand what their thought process was.

[00:18:42] Speaker 01:
as compared to what you're explaining to me right now.

[00:18:46] Speaker 03:
Well, Your Honor, I respectfully state that what the board is doing, the full board, is they're reviewing the initial decision, which does go into significantly more length based on- With respect to the Douglas factors, does it?

[00:18:57] Speaker 01:
Or is it more with respect to earlier decisions on the merits?

[00:19:01] Speaker 03:
I believe what the administrative judge says is he goes through the Douglas factors, and then he addresses the deciding officials' analysis.

[00:19:10] Speaker 03:
And he says she undertook a holistic approach where she looked at all of these factors and came to a conclusion.

[00:19:17] Speaker 03:
He does not go through each one.

[00:19:19] Speaker 03:
He says, well, I've heard her testimony about what she did as to each factor.

[00:19:24] Speaker 03:
The testimony is lengthy and goes in great detail on many of them.

[00:19:28] Speaker 03:
And he says, well, holistically, she balanced them all, which is what she says she did.

[00:19:34] Speaker 03:
and came to a decision that she felt was appropriate, given the nature of the offense and the mitigating factor of depression.

[00:19:40] Speaker 03:
It's worth noting in that, that subsequent to the testimony that Mr. Ball's counsel read into the testimony, there's further testimony from the deciding official at the appendix at page 1118.

[00:19:54] Speaker 03:
Mr. Ball cross-examines the deciding official and says, can you tell me what you did about my depression?

[00:20:01] Speaker 03:
Did you weigh my depression?

[00:20:03] Speaker 01:
Can I ask you something else?

[00:20:04] Speaker 01:
Because you're relying on the administrative judge's decision now.

[00:20:08] Speaker 01:
Now, when I looked at the administrative judge's decision in discussing the Douglas Factors, and that one in particular, in discussing the depression in the context of the Douglas Factors, does talk about this incapacity being required.

[00:20:24] Speaker 01:
It says that the evidence doesn't show that he was incapable or lacked capacity.

[00:20:31] Speaker 01:
Is that the right standard?

[00:20:34] Speaker 03:
I would say no.

[00:20:35] Speaker 03:
For purposes of the Douglas Factors, incapacity is not required.

[00:20:40] Speaker 03:
What the administrative judge says, though I believe as to the Douglas Factors specifically, it says the deciding official looked at the various Douglas Factors.

[00:20:55] Speaker 03:
And I'll see if I can give you the reference.

[00:20:59] Speaker 03:
Right.

[00:21:00] Speaker 03:
At the appendix at page 39,

[00:21:03] Speaker 03:
And goes through, Douglas, the board has enumerated a non-exhaustive list of factors that may be relevant to a determination of discipline in a particular case.

[00:21:13] Speaker 01:
But what about on page 40?

[00:21:14] Speaker 01:
It says, specifically, the appellant contends Walters incorrectly assessed Douglas's factors.

[00:21:21] Speaker 01:
Specifically, the appellant claimed depression prevented him from intentionally committing the offense.

[00:21:28] Speaker 01:
And then says, no medical evidence.

[00:21:31] Speaker 01:
of the appellate's capacity form intent had been compromised.

[00:21:34] Speaker 01:
That's the detailed discussion of that factor on page 40, following the recitation of the Douglas Factors on page 39.

[00:21:49] Speaker 03:
But, and perhaps I misheard you, or perhaps I'm not seeing your reference.

[00:21:56] Speaker 03:
I see where you, on page 40.

[00:21:58] Speaker 01:
Yes, Your Honor.

[00:22:01] Speaker 01:
This is the first paragraph that starts, I guess it's not a full paragraph, but the paragraph that starts, the appellant contended Walters.

[00:22:11] Speaker 01:
If you look at the next sentence, it talks about intentionally committing.

[00:22:16] Speaker 01:
And then there are a few sentences down.

[00:22:18] Speaker 01:
It says, no medical evidence of the appellant's capacity to form intent had been compromised.

[00:22:25] Speaker 01:
So it sounds as if, how I'm understanding this,

[00:22:29] Speaker 01:
is that in the context of the Douglas Factors, in looking at the depression, they're looking at whether the depression had anything to do with the capacity to form intent, which you've just said is not the proper way to analyze depression in the Douglas Factors.

[00:22:45] Speaker 03:
And I now understand your question.

[00:22:47] Speaker 03:
For purposes of FMLA, the question is incapacity, because you can't retroactively invoke FMLA leave.

[00:22:56] Speaker 03:
unless you were incapacitated, physically incapable of making the request.

[00:23:02] Speaker 03:
And we agree that that's the standard for FMLA.

[00:23:05] Speaker 03:
For the Douglas factors, that is not the standard.

[00:23:09] Speaker 03:
But what the administrative judge is saying here is not addressing incapacity, as in you are physically unable to do anything.

[00:23:18] Speaker 03:
He's responding to the contention of my depression made me incapable of having evil intent, bad intent.

[00:23:25] Speaker 03:
And he's saying, no, I don't find the medical evidence supports the lack of capacity to form that intent.

[00:23:31] Speaker 03:
I don't understand the administrative judge here to be saying that Mr. Ball is saying the evidence doesn't support I'm incapacitated, and he has to find complete incapacity for purpose of the Douglas factor.

[00:23:47] Speaker 03:
So it's fundamentally a confusing situation because these two separate claims

[00:23:53] Speaker 03:
are part of what Mr. Ball put before the board.

[00:23:57] Speaker 01:
Right.

[00:23:57] Speaker 01:
But the other issue is addressed in other parts of this opinion, prior to appendix page 40.

[00:24:06] Speaker 01:
So I don't understand why, in the context of Douglas' discussion, it starts on page 39, there is a discussion of capacity with respect to the depression.

[00:24:17] Speaker 03:
Well, I think it's from that second sentence in that paragraph you've pointed me to, Your Honor, where the claim

[00:24:24] Speaker 03:
At least the claim the administrative judge understood Mr. Ball was presenting on the Douglas factor was that depression prevented him from intentionally committing the offense.

[00:24:34] Speaker 03:
And that's the capacity issue.

[00:24:36] Speaker 03:
Did he have the capacity to intentionally commit an offense?

[00:24:40] Speaker 03:
Different than complete incapacity to submit an FMLA request, which are different things, though perhaps in light of the earlier discussion of FMLA, a different word choice could have been used.

[00:24:54] Speaker 03:
he's responding to this issue that Mr. Ball is putting before him.

[00:24:59] Speaker 01:
Where does he address the medical condition?

[00:25:03] Speaker 03:
The, for purpose of the Douglas factors.

[00:25:12] Speaker 03:
Well, he addresses it.

[00:25:14] Speaker 03:
I'd say in addition to in this paragraph twice before on pages appendix 39 and 40, he specifically states,

[00:25:22] Speaker 03:
that he's confirmed that the deciding official looked at mitigating circumstances, which is here the depression.

[00:25:29] Speaker 03:
That's the mitigating circumstance that Mr. Ball is relying on.

[00:25:33] Speaker 03:
And again, it's not an independent review.

[00:25:35] Speaker 03:
The administrative judge is to be looking to see was there a review.

[00:25:38] Speaker 01:
Where is that?

[00:25:40] Speaker 03:
On page 39, in the paragraph that continues from the preceding page, just before there's a citation to Douglas, oh, I'd say

[00:25:52] Speaker 03:
five lines from the bottom.

[00:25:54] Speaker 03:
That's an awkward reference, I'm sorry.

[00:25:56] Speaker 03:
But two lines above that, he specifically calls out any mitigating circumstances surrounding the offense.

[00:26:02] Speaker 03:
And then on page 40, in the paragraph that again carries over from the preceding page, there's a sentence that begins to wit.

[00:26:12] Speaker 03:
And it reads, to wit, Walters explained her decision in terms of the salient Douglas factors.

[00:26:18] Speaker 03:
And there's a parenthesis.

[00:26:20] Speaker 03:
e.g.

[00:26:20] Speaker 03:
it goes for a while and the last one he calls out as Walters, the deciding official calling out, is mitigating circumstances.

[00:26:28] Speaker 01:
How do we know that there wasn't a misunderstanding on the part of the administrative judge in thinking and dealing with all this intentionally committing language that this wasn't

[00:26:39] Speaker 01:
There wasn't confusion as to what Mr. Bell had to prove in order to have mental illness be considered as a mitigating factor.

[00:26:51] Speaker 01:
And also, one is that the AJ would have to discuss the actual evidence itself.

[00:26:56] Speaker 01:
I'm struggling here as being on a court review.

[00:27:00] Speaker 01:
I'm struggling with understanding what the administrative judge was thinking when there's no discussion at all of the medical evidence.

[00:27:14] Speaker 03:
taking our guidance from the Hays Court where the board is not proceeding de novo but is giving at least some deference to the agency decision.

[00:27:25] Speaker 03:
What this court has instructed the board to do then is not to engage in a brand new evaluation of all the evidence but to ensure, yes, these factors were looked at.

[00:27:35] Speaker 01:
But I understand that.

[00:27:38] Speaker 01:
We're not going to find facts.

[00:27:39] Speaker 01:
But we need to be able to look at an opinion and be assured that the factors were understood as they're properly required to be understood, not as an intentional committing the offense or capability, whether you're culpable or not, based on your mental illness.

[00:27:56] Speaker 03:
But the administrative judge specifically states, I've come up to make sure mitigating factors are considered,

[00:28:02] Speaker 03:
And the confusion that Your Honor is calling up is, if anything, the confusion that Mr. Bowell brings in by saying, wait, you can't find against me on the Douglas factors if my depression prevented me from intentionally committing the offense.

[00:28:18] Speaker 03:
So to the extent that shouldn't have been inserted in there to begin with, that's the argument Mr. Bowell is making, and the administrative judge is responding to it.

[00:28:26] Speaker 03:
Which, again, the administrative judge here and the board generally is not

[00:28:31] Speaker 03:
engaging in a brand new evaluation for the reasons this court said in Hayes that there are hundreds of agencies and thousands of decisions every day and it's not for the board to engage in a brand new evaluation of every one of those decisions for reasons of simple lack of, for reasons that it would make the system we've established untenable.

[00:28:55] Speaker 03:
For those reasons, your honors, we would ask that the decision be affirmed.

[00:29:04] Speaker 00:
Your Honor, we respectfully disagree that the AJ did not explain its reasons for not considering the medical evidence.

[00:29:17] Speaker 00:
At appendix 41, footnote 5 expressly addresses the medical condition and says that the AJ concludes that the medical condition was not a significant mitigating factor under the circumstances.

[00:29:31] Speaker 00:
The AJ makes clear in that footnote

[00:29:34] Speaker 00:
that the reason the AJ reached that conclusion is because it conflated the standard for incapacity with mental impairment.

[00:29:42] Speaker 00:
I quote from the footnote.

[00:29:43] Speaker 00:
It says that Mr. Bell claimed that mental impairment played a part in the charge misconduct.

[00:29:50] Speaker 00:
But unlike the appellant in this other case, Bowman, Mr. Bell failed to offer persuasive evidence that his medical condition played a part in the charge misconduct.

[00:30:01] Speaker 00:
In fact,

[00:30:02] Speaker 00:
The medical evidence offered did not establish incapacity.

[00:30:06] Speaker 00:
The appellant failed to establish his medical condition ever rose to the level of incapacity.

[00:30:11] Speaker 00:
And unlike in Bauman, there was not compelling evidence of medical impact around the time of the charge misconduct.

[00:30:19] Speaker 00:
Therefore, we disagree with the government's lawyer that there was a poor choice of words earlier in the decision.

[00:30:24] Speaker 00:
The AJ expressly said that she relied on an understanding of mental impairment

[00:30:30] Speaker 00:
to be required to rise to level incapacity in discounting the medical condition as a significant mitigating factor.

[00:30:39] Speaker 00:
For those reasons, we respectfully request that this case be remanded to the board.

[00:30:45] Speaker 02:
Any questions for this room?

[00:30:48] Speaker 02:
Any more questions?

[00:30:48] Speaker 02:
Okay, thank you.

[00:30:49] Speaker 02:
Thank you both.

[00:30:50] Speaker 02:
The case is taken under submission.

[00:30:52] Speaker 02:
That concludes this panel's argument this afternoon.