Case No: 18-2352

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

SEAN C. HIGGINS,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.

PETITIONER’S REPLY BRIEF

_____________________________________________________

ON PETITION FOR REVIEW OF THE FINAL ORDER OF THE MERIT

SYSTEMS PROTECTION BOARD
_____________________________________________________
__

Submitted by:
Stephani Ayers
John Whitty
c/o Government Accountability Project
1612 K St., NW, Suite 1100
Washington, DC 20006
Phone: 813 382 7865
Email: stephani@whistleblowerdefenders.com
johnw@whistleblower.org
 TABLE OF CONTENTS

CERTIFICATE OF INTEREST……………………………………………………i

I. ADDITIONAL RELEVANT FACTS ............................................................2

II. ARGUMENT IN REPLY ...............................................................................7
A. The Agency Provided No Rebutttal to the Clear Facts that the
Administrative Judge Did Not Adequately Consider the Appellant’s PTSD: 7
B. The Administrative Judge Improperly Denied and Restricted
Testimony That Evidenced Motive to Retaliate: ............................................9
C. Agency Is Clearly Mistaken in Its Assertions That Management Had
No Motive to Retaliate ..................................................................................18
III. MOTION TO STRIKE .................................................................................19
IV. AGENCY’S MOTION TO DISMISS ..........................................................20
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION

i
 TABLE OF AUTHORITIES

Federal Circuit Cases

.....................................................................................................................................
.....................................................................................................................................
Carr v. SSA, 185 F.3d 1318, 1323 (Fed. Cir. 1999)…………………....9, 13, 14, 15
Lazaro v. VA, 565 Fed. Appx. 900, 904 (Fed. Cir. 2014 NP) .................................19
Malloy v. U.S. Postal Service, 578 F. 3d 1351 (Fed. Cir. 2009) ...........................8, 9
Mueller v. U.S. Postal Serv., 76 F.3d 1198, 1201–02 (Fed. Cir. 1996)…………...19
Oshiver v. OPM, 896 F.2d 540, 542 (Fed. Cir. 1990)……………………………19
Turman-Kent v. Merit Sys. Prot. Bd., 657 F.3d 1280, 1283 (Fed. Cir. 2011)…….19
Whitmore v. Dep't of Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012)…………….8, 9
Yuni v. MSPB, 784 F.2d 381, 387 n.5 (Fed. Cir. 1986)…………………………..19

Regulations
5 C.F.R. § 1209.4(e). ...............................................................................................17

ii
 SUMMARY OF ARGUMENT
Agency wants to end the Appellant’s career for profanity and a figure of

speech with no ill-intent behind it. Agency argues this is a just outcome despite

the fact the Agency caused PTSD in Mr. Higgins according to his doctor and

despite the fact Agency continued to subject Mr. Higgins to enormous pressure for

his whistleblowing. Mr. Higgins never gave up lobbying for the health and safety

of the patients of the Memphis VA Medical Center, though the VA retaliation took

a significant toll on his mental and physical well-being. Despite Mr. Higgins’

readily observable suffering (even co-workers knew of Mr. Higgins’ PTSD)

Agency’s management repeatedly strategized to orchestrate Mr. Higgins’ removal.

This strategizing was so alarming to a new manager, so unaccustomed to the party

line of harassing Mr. Higgins, that he made a memo about the pressure to build

case to remove Mr. Higgins.

Nowhere was this strategizing clearer than when Mr. Higgins was, after

years of fighting with management for the protection of the vulnerable population

of veteran patients, removed for a figure of speech, hyperbole common in day-to-

day speech. When Mr. Higgins issued the phrase “what do I have to do, put a gun

to the Director’s head”, not one person who actually heard him thought he intended

to harm anyone. Everyone present took it as an expression, perhaps dramatic, but

with no intent to act. Mr. Higgins was neither interviewed about the expression,

1
nor told to stop reporting to work. Mr. Higgins continued working at the VA for

three more months before management decided they would use this expression,

made in a private EEO meeting in frustration as his PTSD flared, against him.

Mr. Higgins used profanity from time-to-time. He was not alone in doing

so, but he was alone in being singled out for removal because of it. Mr. Higgins

testified credibly that swearing and anger, at time outbursts, were symptoms of his

PTSD. Dr. Amy Ballentine also testified that Mr. Higgins’ PTSD caused anger,

irritability, and outbursts like those for which he was punished. The Agency wants

the Court to ignore this evidence, despite the law requiring this medical evidence

be reviewed and considered in so clear a way as to allow the appellate court to

know how the decisionmakers below actually considered and weighted the

evidence. Despite the law, despite the facts of the VA’s repeated failing of veterans

and whistleblowers putting Mr. Higgins in jeopardy, despite the VA’s behavior in

causing his PTSD, the VA wants this Court to hold Mr. Higgins alone accountable.

This is not just or in the best interests of the federal service.

I. ADDITIONAL FACTS
In addition to the facts set forth in his Opening Brief, Mr. Higgins submits the

following additional facts in reply to Agency:

1. Before participating in the discipline of Mr. Higgins in 2017, Mr. Kehus

2
served for four months as Associate Director at the Memphis VA in 2016, in the

midst of a number of high-profile disclosures of Mr. Higgins, reported in the media

and to the VA’s accrediting agency, including the improper disposal of

biohazardous waste, disposal of human body parts in the VA sink drains, and the

Memphis VA’s maintenance of secret patient wait lists (designed to conceal the

wait times to which our Memphis veterans were subjected).1

2. Mr. Belmont presided over the Memphis VA as the Director at

the beginning of 2017, when Mr. Higgins caused repeated embarrassing news

reports to issue about the VA’s improper blood disposal methods, attacks on a VA

patient by employees, and a VA employee keeping her job despite her multiple

DUIs.2

3. Had she been allowed to testify, Ms. Depperman would have confirmed

she was the Chief Financial Officer, had served as an Acting Director, and had

held a senior management position with the Memphis VA for many years.3

4. Contrary from Agency’s assertion that manager Belmont, Depperman or

Reesman had no say in retaliating or desire to retaliate, as Agency suggests, on

May 10, 2017, Assistant Director Depperman confronted David Reesman

(proposing official for termination) demanding he rewrite a Report of Contact with

1 Appx302, Appx066-067
2
Appx042-043.
3 Appx79-80.

3
Mr. Higgins to be implicate Mr. Higgins in misconduct.4 Ms. Depperman

demanded Mr. Reesman change a Report of Conduct to claim Mr. Higgins was

swearing (a discipline issue), when in fact Reesman’s concern was manager Goode

not adequately overseeing Higgins’ hours (a management failure):

On 10 May 2017 Ms. Depperman, acting as the Assistant Director, sent me an

email requesting me to come to her office. When I arrived in her office she
was quite irritated about a contact form she had requested I submit on my
initial visit with Mr. Higgins. She began the conversation by saying she felt
the contact report did not match what I had told her and the Director and Mr.
harper on the day of the meeting. She said "you were irritated and said he
swore'. I told her the statement accurately reflected the conversation and that
what I was irritated about was the fact that Mr Goode (NX Supervisor) was
signing Mr. Higgins time card... 5
5. Unsatisfied with this Report, which did not charge Mr. Higgins with any

wrongdoing, Ms. Depperman tried to order Reesman to change his Report.6 Director

Belmont was also involved in this exchange of expressing disappointment in

Reesman for not changing his report, according to Mr. Reesman, who wrote:

She state I needed to take my report of contact back and rewrite it to make it
more match her recollection of our conversation. She state that She, Mr.
Belmont, and Mr. Harper now longer trusted me. ***I told her to rewrite the
statement would be untruthful and i felt it was unethical she was attempting
to pressure me into doing so. there was a pause and she then stated well you
have lost the facility's trust. I stated again I would not change my report of
contact. 7
6. There was no legitimate purpose for VA management to insist Mr.

4 Appx300, Ex. XXX, (Report of Contact); Index of Administrative Record, [Doc.

9, p.7])
5 Id.
6
Id.
7 Id. (emphasis added).

4
Reesman alter his Report of Contact with Mr. Higgins. Mr. Reesman knew exactly

what VA management’s intent as he recorded this chilling statement to close his

Report of Contact:

I spoke that failure to be truthful would result in failed effort to remove

Mr. Higgins.8

7. Had Mr. Poindexter been allowed to testify he would have also offered

his knowledge of Mr. Higgins as appropriate and his observations of

management’s strong desires to remove Mr. Higgins, so much so, that the 14-day

suspension was the best he could do in intervening when management wanted to

terminate Mr. Higgins for the low-level swearing incident for which Mr. Higgins

was suspended.9

8. Against this backdrop of desire to build a case for removal against Mr.

Higgins, Mr. Belmont submitted a falsified Petition for Order of Protection.10 Mr.

Belmont claimed Mr. Higgins “stalked” him, despite the uncontroverted evidence

that Mr. Higgins never saw Mr. Belmont outside work, never spoke to Mr.

Belmont, and never called Mr. Belmont.11 Mr. Belmont then put together a

narrative with false accusations about Mr. Higgins, claiming:

Sean Harris is the alleged stalker of James E. Belmont… The petitioner stated
that on 03/16/17, “Mr. Higgins made a statement in the EEO office that he was
going to “go home and get his 45 and bring it back and shoot me Belmont in the

8 Id.
9 Appx078.
10
Appx303-310 [Petition for Protective Order and Order, Agency Tab 4n and 4o].
11 Appx304, Appx183, TR, Vol. II, 127: 12-20 (Higgins).

5
 head.” …The petitioner also stated that he has been receiving constant harassing
phone calls from Sean Harris as well.12

9. Not one witness stated they heard Mr. Higgins make a statement that he

was going to go home, get his 45, and shoot Belmont in the head. After confronted

with his deposition, Mr. Belmont had to admit at trial the phone calls he claimed

were made by Mr. Higgins were not.13 Instead Mr. Belmont conflated Union

President Marshall Harris, who as Union President was trying to meet with Mr.
14
Belmont, with Mr. Higgins and misrepresented to the court the true facts. This,

despite having a court officer on hand at the time to inform Mr. Belmont how to

properly fill out the form and advise him as to the legal definition of stalking.15

10. Agency states Mr. Belmont obtained a protective vest and was diagnosed

with PTSD.16 While sad if true, this course of action would not be based on anything

Mr. Higgins actually said or did to Mr. Belmont. Respondent Agency admits Mr.

Belmont’s entire course of action and reaction was based on a third hand report from

the VA Police Chief, who himself never spoke to Mr. Higgins.17 No one from the

EEO meeting spoke to Mr. Belmont about the actual conversation that took place.18

11. The false petition and order, though never served on Mr. Higgins, was

12 Id.
13
Appx150 (Tr., 170: 15-21 (Belmont)).
14 Appx311 (TR., 160: 19-22, 161: 2-12 (Belmont)).
15 Appx149 (TR., 166: 2-20 (Belmont)).
16 Brief of Respondent, p. 10.
17
Brief of Respondent, p. 10, Appx 151 (TR., 176: 2-11) (Belmont).
18 Appx151 (TR., 175: 18-22, 176: 1 (Belmont)).

6
included in the Agency File for removal presented to Dunning.19 Hence Dunning

reviewed and relied upon false information about Mr. Higgins “stalking” and calling

Mr. Belmont and a false report that Mr. Higgins had said he was “going to shoot Mr.

Belmont in the head.”

12. Agency claimed managers “perceived a threat” from the words of Mr.

Higgins.20 Yet, Agency does not dispute that Mr. Higgins remained at the work site

unrestricted for three more months, indicating Agency did not actually consider this

expression a threat. In fact, such expressions were so commonplace, Mr. Harris

testified an HR manager Sam Burnside made the same expression about a gun to Mr.

Harris’ head 48 hours after the EEO meeting.21

II. ARGUMENT IN REPLY

A. The Agency Provided No Rebutttal to the Clear Facts that the
Administrative Judge Did Not Adequately Consider the Appellant’s
PTSD:
The Agency claims: “review of the administrative judge’s decision makes

clear that the administrative judge expressly considered all of the mitigating

circumstances, including Mr. Higgins’s long service, PTSD, perception of being

retaliated against, and successful performance ratings.”22 Yet, nowhere does the

Agency cite the language showing the judge’s “consideration” of PTSD in the

19 Appx303-310.
20 Brief of Respondent, p. 10.
21
Brief of Appellant, p. 15-16.
22 Brief of Respondent, p. 27.

7
suspension or the removal. That is because there is none. Other than simply stating

the Appellant in fact had a PTSD diagnosis, and claiming removing official

Dunning noted “PTSD”, the judge performed zero actual analysis of the diagnosis

or its impact on the statements of Appellant or charges against him. The AJ made

no mention of the fact that deciding official to the suspension Mr. Kehus testified

he did not even know the symptoms of PTSD and thus Mr. Kehus could not have,

and did not, weigh the mental impairment of Mr. Higgins in deciding the

appropriate discipline.

The Agency goes on to claim: “There is no formula demonstrating how

mental impairment must be considered”. 23 Claiming there is no formula, Agency

simply chooses to ignore the mandated minimums set forth in case law. Where (as

was the case here) an AJ did not mention any of the medical documents, although

she stated that she had “reviewed [Appellant’s] submissions”, this Court has found

that insufficient. The Malloy Court reversed the Board and the AJ specifically

because the record did not show what consideration was given or how that

consideration was applied to the medical evidence: “The record before us does not

show what consideration or argument may have been given to the medical

23 Brief for Respondent, p. 26.

8
evidence by the AJ, or on appeal to the full Board.”24 Malloy further instructs that

evidence of medical impairment is entitled to considerable weight.25

Despite the Malloy guidance, the AJ below made no mention of Dr.

Ballentine’s records, Dr. Ballentine’s testimony, or Mr. Higgins’ testimony about

the PTSD episodes from which he suffered. The AJ did not discuss the Appellant’s

state of mind at the time of the alleged statements, nor discuss the statements in the

context of the PTSD diagnosis.26 The AJ’s decision does not show whether any

weight, much less whether considerable weight, was given to the medical evidence

or impairment. This does not even meet the minimum requirements; where the AJ

contained “no analysis of the medical evidence”, Malloy dictates the AJ committed

error.27

B. The Administrative Judge Improperly Denied and Restricted

Testimony That Evidenced Motive to Retaliate:
In his analysis of both the suspension and the removal actions, the

administrative judge mentioned Carr factor two, but he was unduly dismissive of

the evidence of retaliatory motive in Mr. Higgins’ suspension case and unduly

24 Id.
25
Id.
26
In the context of arguing about Mr. Higgins’ PTSD, the Agency claims “Even
Mr. Higgins does not challenge the administrative judge’s factual determinations”
at Brief for Respondent, p. 29. Yet, there were no PTSD factual findings for
Appellant Higgins to challenge. The AJ did not make any factual determinations
about Mr. Higgins’ PTSD at all, other than finding that Mr. Higgins had it, which
Appellant clearly does not dispute. The AJ did not even discuss the medical
records or issue any findings about the medical evidence or the diagnosis.
27 Malloy v. U.S. Postal Service, 578 F. 3d 1351, fn. 2 (Fed. Cir. 2009).

9
restrictive in his removal case, and failed to consider all pertinent evidence that

would have undercut the Agency’s ability to meet its clear and convincing

evidentiary burden.

1. The AJ excluded critical evidence related to the suspension

In Mr. Higgins’ suspension case, the administrative judge found no evidence

of retaliatory motive, because there was “no evidence that the appellant directed

his protected disclosures against either Poindexter or Kehus,” and because Mr.

Kehus was a relative newcomer to the hospital.28 It is nonsense to suggest that

there is a bright timeline or set timeframe that a manager must be present to

develop a retaliatory motive. Motive can happen in an instance, from one

disclosure, or even based on the prior perception of an employee as a

whistleblower. Indeed, the AJ recognized there may have been institutional

motive to retaliate,29 and then inexplicably focused solely on “personal motive”.

These arbitrary limits to timeframes and personal motive and excluding relevant

evidence created error necessitating remand.

Mr. Kehus was a high-ranking Memphis VA manager. He was an Associate

Director for 4 months in 2016 during the height of a number of Mr. Higgins’

disclosures that were at best, embarrassing to the VA, and at worst, potentially

28
Appx009.
29 Appx18, ID, at 18.
10
deadly and illegal. 30 Instead of considering however that the embarrassment to the

Agency would motivate its managers to retaliate, the Judge inquired only to the

disclosures impact on the manager personally. Even then, Mr. Higgins elicited

testimony at the hearing about one of Mr. Higgins’ disclosures that did directly

impact Mr. Kehus, but the administrative judge summarily cut off further

questioning of Mr. Kehus and dismissed that entire inquiry.31 Mr. Kehus, the

deciding official, testified to the impact that Mr. Higgins’ well-publicized

disclosure of Ms. Lowe’s improper use of leave and government vehicles, after her

multiple DUI arrests and incarceration, had on the hospital director, Mr. Belmont.32

Mr. Kehus testified that he was Ms. Lowe’s second-line supervisor, that Mr.

Belmont felt that he had been misled regarding the incident, and it had been

enough of an issue that someone had been disciplined.33 The administrative judge

then cutoff Mr. Kehus’ relevant testimony of the consequences of that incident.34

With no further ado, the administrative judge found no evidence that Mr. Higgins’

disclosures implicated Mr. Kehus and found no evidence of retaliatory motive on

the part of Mr. Kehus.35

30
Appx302.
31 Appx157.
32 Appx157.
33 Id.
34
Id.
35
Appx009.
11
 Here, the administrative judge heard testimony from Mr. Kehus that one of

Mr. Higgins’ disclosures resulted in Kehus’ boss, the hospital director, feeling that

he had been misled, and the ensuing debacle was sufficient to result in someone

being disciplined. 36 The responsibility for this deception or perceived deception

ultimately lay with Mr. Kehus, the second-line supervisor of Ms. Lowe, yet the

administrative judge sustained the objection of the Agency and dismissed this

relevant testimony of retaliatory motive.37 To then find no evidence of retaliatory

motive, without any discussion of Kehus’ testimony of that incident, while denying

his relevant testimony of its fallout, seems remarkable, was contrary to Whitmore,

and was unduly dismissive.38

This Court, in the Whitmore decision, found a similar fact pattern to be

remarkable too, and subsequently summed up the broad argument for why the

agency must carry a high burden of proof in a whistleblower reprisal case, “[the

appellant] is at a particularly severe evidentiary disadvantage when it comes to

proving the state of mind of [agency] officials if a mere denial is sufficient to

remove the possibility of retaliatory motive.”39 Here, there was credible evidence

36 Appx157.
37 Id.
38
Appx009; Whitmore v. Dep't of Labor, 680 F.3d 1353 (Fed. Cir. 2012).
39 Whitmore, 680 F.3d at 1372.

12
of retaliatory motive, yet the administrative judge squelched further examination of

it, and accepted the officials’ “mere denial.”40

2. The AJ committed error in his strained examination of the motive to

retaliate in the removal and compounded that error by excluding
critical evidence

In his analysis of Mr. Higgins’ removal case, the administrative judge

assesses retaliatory motive on the part of victims and witnesses, but conflates a

motive to retaliate by those testifying to the charged conduct with a motive to

retaliate by the decision makers and those influencing the decision makers.41 One

of the issues essential to the instant appeal is the motive to retaliate by the decision

makers and those who influenced them, not any motivation to retaliate on the part

of victims and witnesses to the charged conduct. The administrative judge

misdirected his focus onto the motivation of random witnesses, while ignoring or

not allowing any testimony from those who influenced the decision makers.42

The particulars of the charged conduct are not at issue when examining Carr

factor two, and so the motivations of the victims and witnesses are not the relevant

question to ask. In many cases the relevant question of retaliatory motive surely

would include the proposing officials, but in the case of Mr. Higgins, whether by

accident or design, the proposing official, Mr. Reesman, likely possessed no

40 Appx157; Appx009.
41 Appx018.
42
Appx018.
13
retaliatory motive because of his status as a newcomer at the hospital.43 However,

Mr. Reesman’s proffered testimony spoke precisely to those who influenced his

decision to propose the third retaliatory removal of Mr. Higgins:

He can testify that he prepared the Douglas factor analysis despite

having no substantial observation of the Appellant, limited interaction
with the Appellant, and knowing or assuming that his two subordinate
supervisors, Mr. Goode and Mr. Poindexter, had limited interactions
with Appellant. He can testify that he prepared the Douglas factor
analysis based on conversations with Mr. Ambrose, Ms. Andrea
Baumer, Ms. Jennifer Fann, and Mr. Goode, and incorporated their
statements into the Douglas factor document. He can testify that he
prepared the Douglas factor analysis under the impression and belief
that all of the aforementioned had filed adverse reports against the
Appellant.44
Here, where Mr. Higgins had made his prima facie case of whistleblower

retaliation, thus establishing the implication that a retaliatory motive tainted the

personnel action, and given the imbalance of power between the Agency and Mr.

Higgins, it is especially important that the administrative judge consider all

pertinent evidence.45

Regarding the removal action, the administrative judge was unduly

restrictive of the evidence of motive to retaliate—clearly indicated by his exclusion

43
Appx077-78.
44 Appx077-78. Inexplicably, Agency suggests Mr. Higgins should have inquired
to Mr. Ambrose what impact his conversations with Mr. Reesman had upon Mr.
Reesman. Mr. Ambrose was not a witness listed by Appellant, thus Appellant was
limited in the scope of its questions to the direct, but more importantly, Mr.
Ambrose would not be able to testify as to what impact his discussions had upon
Reesman.
45
135 Cong. Rec. H747 (daily ed. Mar. 21, 1989) (explanatory statement on Senate
Amendment to S. 20); Whitmore, 680 F.3d at 1368.
14
of Mr. Reesman’s testimony and his exclusion of those likely to have influenced

the decision makers in his roundup of those “agency officials involved in [Mr.

Higgins’] removal.”46 When discussing Carr factor two the focus needs to be on

the decision makers and those influencing them.47 Here, the administrative judge

refused to allow Mr. Higgins to extend his inquiry to the motive of the deciding

officials, or examining the proposing officials or those that influenced them.48

While it is true that Ms. Oatis-Newsome and Mr. Rowe, witnesses to one of the

episodes of charged conduct and both on short-term details to the hospital, may not

have retaliatory motive, their lack of motive speaks to the Agency’s burden of

proving the charged conduct, not Carr factor two—neither official was linked to

the decision, months later, to remove Mr. Higgins. In addition, Ms. Grimes’ motive

may speak to the Agency’s burden of proving the charged conduct, but it is hardly

relevant to the Carr factor two analysis—she was not implicated in the removal

decision. Similarly, the lack of motive by Mr. Reesman, the proposing official, was

not remarkable—Reesman had supervised Mr. Higgins for about one month at the

time he proposed Higgins’ removal.49 For the administrative judge to evaluate

these officials for retaliatory motive in his Carr factor analysis, while restricting

46 Appx018.
47 Whitmore, 680 F.3d at 1371.
48
Appx018, Appx107-108.
49 Appx141, TR 126:13-127:2.

15
testimony of those who influenced the removal decision, was an abuse of his

discretion.

The administrative judge did make mention of the potential for an

institutional motive to retaliate against Mr. Higgins, but quickly walked that back,

saying “the record does not support the conclusion that any of [the managers] had a

significant personal motive to retaliate against the appellant.”50 Again, considering

that Carr factor two speaks only to those involved in the decision to remove Mr.

Higgins or influencing that decision, and discounting that the administrative judge

did not hear from the proposing official or anyone who may have influenced the

decision, “the managers” that he refers to is only one person, the deciding official,

Mr. Dunning.51 The administrative judge restricted the inquiry into retaliatory

motive to Mr. Dunning, who had reported aboard twenty-nine days before the Mr.

Higgins’ oral reply.52

Contrary to the Agency’s representations of what Ms. Depperman’s position

was, which cited material that is not part of the Administrative Record and must be

stricken, as described below, it is clear Mr. Belmont and Ms. Depperman had

retaliatory motive that they shared with Mr. Reesman. It is another indicator of the

Agency’s retaliatory motive toward Mr. Higgins.53 Other indicia of retaliatory

50 Appx018.
51 Appx018
52
Appx131, TR, Vol. 1, 77:8-9; Appx120-122 (Agency File Tab 4c).
53 Brief of Respondent, at 45.

16
motive are Reesman’s complete inexperience at the hospital and with Mr. Higgins,

and inability to properly judge his work or relations, and Depperman’s long

experience as a senior leader with the extensive history of disclosures made by Mr.

Higgins, and her role as Reesman’s supervisor.54

The Agency blithely disregards its heightened clear and convincing burden

when it characterizes Mr. Higgins’ assertion of retaliatory motive as a “needle in a

haystack,” failing to acknowledge the elevated degree of proof required to protect a

whistleblower’s disclosures, and the Agency ignores the admonition from the

Whitmore court to consider all pertinent evidence, including that which detracts

from the eventual conclusion.55 Board regulations define clear and convincing

evidence as “that measure or degree of proof that produces in the mind of the trier

of fact a firm belief as to the allegations sought to be established. It is a higher

standard than ‘preponderance of the evidence.’”56 Instances of testimony cut short,

witnesses excluded, and simplistic analysis of retaliatory motive are more than a

“needle in a haystack” and sufficient to disturb the Agency’s clear and convincing

burden, thus warranting this court to remand.

54 Brief of Appellant, at 28 ¶ 40, 30 ¶ 42.

55 Brief of Appellant, at 44-45; Brief of Respondent, at 43; Whitmore, 680 F.3d at
1368.
56
5 C.F.R. § 1209.4(e).
17
 C. Agency Is Clearly Mistaken in Its Assertions That Management Had
No Motive to Retaliate
Without a doubt, Mr. Higgins’ disclosures were very embarrassing to the VA.

This manifested in readily apparent desire on the part of managers to build the case

to have Mr. Higgins removed. Ms. Depperman and Mr. Belmont’s desire to have

Higgins removed was observable as described above. They were not innocent

bystanders, but rather influencers trying to build a removal case against Mr.

Higgins, even threatening the proposing official manager when he did not write a

strong memo against Mr. Higgins.

This zest for Higgins’ removal sets the context for Mr. Belmont’s Petition for

Protection and why he was willing to fabricate a charge of “stalking”, conflate Mr.

Harris with Mr. Higgins in the petition, and attribute Mr. Harris’ calls to Mr.

Higgins without correction. Set against a backdrop of an Agency looking to

fabricate charges, such as Ms. Depperman instructed Mr. Reesman to do, the

willingness to falsify allegations against Mr. Higgins, even when swearing out a

petition to the court, makes more sense and provides additional evidence of motive

to retaliate. That the false petition was presented in the removal package taints the

entire process with retaliatory intent. Finally, that Agency kept Mr. Higgins at the

work site for three months after finding out about the conversation in the EEO

Office belies that it truly perceived he had issued any threat. Instead, this removal,

the false evidence, and the explanations that strain credulity, demonstrate

retaliatory intent.
18
 III. MOTION TO STRIKE
A. The Extra-Record Material That Was Not Filed In Agency Below
Must Be Stricken From the Brief of the Agency

Pursuant to Fed. Cir. R. 27(e), Appellant Higgins requests that the non-

record material included in the Agency's appendix and argument to the same in its

brief be stricken. Appellant conferred with Agency counsel as to this issue, but

Agency counsel did not respond prior to the completion of this brief. 57

The Administrative Record did not include the deposition testimony of

Depperman or Reeseman. (See Index of Administrative Record, [Doc. 9]). The

Agency submitted and cited to the following material that was not a part of the

Administrative Record:58

Excerpts of Deposition Testimony for Mr. Reesman Appx 295-297

Excerpts of Deposition Testimony for Ms. Depperman Appx 298-299

Brief of Respondent, p. 35-36: Mr. Higgins speculates that “Ms. Depperman

must have had a motive to retaliate against Mr. Higgins—even though she
testified to the contrary in her deposition…”

Brief of Respondent, p. 39: In Mr. Reesman’s deposition testimony, he

testified that Ms. Depperman stated that because of her “high-up role” she did
not want to influence the process. Appx295-296. This is further corroborated
by Ms. Depperman’s testimony that says the same. Appx297-298.

These appendix pages and any argument and citation to them must be stricken. The

Federal Circuit reviews final decisions and final orders of the Board on the

57
See Attachment 1.
58 See Doc. 9, Index.
19
administrative record. The court will not consider new evidence contained in

supplemental papers filed with the court. The evidence first must have been filed

with the Board. Oshiver v. OPM, 896 F.2d 540, 542 (Fed. Cir. 1990) (citing Yuni v.

MSPB, 784 F.2d 381, 387 n.5 (Fed. Cir. 1986)). Lazaro v. VA, 565 Fed. Appx. 900,

904 (Fed. Cir. 2014 NP), explained at n.2:

…Documents that were not submitted to the Board during the remand, but
instead submitted directly to this court on appeal, are also irrelevant. See
Turman-Kent v. Merit Sys. Prot. Bd., 657 F.3d 1280, 1283 (Fed. Cir. 2011)
(“Because those items were not presented to the Board, they are not part of
the record on appeal and are not properly before us.”); Mueller v. U.S. Postal
Serv., 76 F.3d 1198, 1201–02 (Fed. Cir. 1996) (“Because we are limited to
reviewing decisions of the Board based on the record before the deciding
official, we decline to base our judgment on evidence that was not part of the
record before the administrative judge.” (citation omitted)).

IV. AGENCY’S MOTION TO DISMISS

Agency’s Motion to Dismiss is a non-issue based on one box checked on

Form 10 versus another box. Either checked box gives the Court jurisdiction. Mr.

Higgins has not pursued any discrimination by reason of disability here. He did

not brief any discrimination issue here. He confirmed the same on Form 10: “No

claim of discrimination by reason of… handicapped condition has been or will be

made in this case.” Though it is non-issue given these facts, Appellant files his

Amended Form 10 with this brief to ensure the point is moot.59

59 Attachment 2.
20
Filed this 24th day of May 2019,
_/s/Stephani L. Ayers______________
Stephani L. Ayers, Esq.

21
 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME
LIMITATION, TYPEFACE REQUIREMENTS
AND TYPE STYLE REQUIREMENTS
1. This brief complies with the type-volume limitation of Federal Circuit

Rule 32(a). This brief contains 5,097 words, including the parts of the brief

exempted by Federal Rule of Appellate Procedure 32(f) and Federal Circuit Rule

32 (b).

2. This brief complies with the typeface requirements of Federal Rule of

Appellate Procedure 32(a)(5) or Federal Rule of Appellate Procedure 28.1(e) and

the type style requirements of Federal Rule of Appellate Procedure 32(a)(6), and is

presented in Times New Roman 14-point font, double spaced.