Brison v. DVA , 549 F. App'x 976 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARION J. BRISON,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
______________________
2013-3067
______________________
Petition for review of the Merit Systems Protection
Board in No. CH0752100869-I-1.
______________________
Decided: December 9, 2013
______________________
KENNETH J. HEISELE, Weprin, Folkerth & Routh,
LLC, of Dayton, Ohio, argued for petitioner.
JANE W. VANNEMAN, Senior Trial Counsel, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
respondent. With her on the brief were STUART F.
DELERY, Acting Assistant Attorney General, JEANNE E.
DAVIDSON, Director, and REGINALD T. BLADES, JR., Assis-
tant Director.
______________________
2 BRISON v. DVA
Before O’MALLEY, PLAGER, and TARANTO, Circuit Judges.
PER CURIAM.
This petition for review relates to a decision by the
Merit Systems Protection Board (“Board”) to remove
Marion J. Brison (“Ms. Brison”) from federal service after
being charged with inappropriate conduct towards a
patient. For the reasons explained below, we affirm.
BACKGROUND
Ms. Brison was employed as a Diagnostic Radiologic
Technologist at a Department of Veteran’s Affairs (“VA”)
hospital in Dayton, Ohio. On September 14, 2009, a
patient, Mr. C 1, was brought to Ms. Brison for a CT scan.
Mr. C is an elderly WWII veteran who has several medi-
cal conditions.
As part of the scan, Ms. Brison had to position Mr. C’s
body. Ms. Brison was assisted that day by Ms. Hoerner.
Both Mr. C and Ms. Hoerner reported that Ms. Brison’s
treatment of Mr. C during the procedure was rough and
caused him distress. The VA Board of Investigation
(“BOI”) investigated the incident. The BOI concluded
that Ms. Brison “was both physically and verbally abu-
sive.” J.A. 165. On January 25, 2010, Dr. Neil Katz
proposed to remove Ms. Brison on the basis of two charg-
es: (1) Ms. Brison was verbally abusive to Mr. C, and (2)
Ms. Brison was physically abusive to Mr. C. Mr. Richard-
son on June 17, 2010, issued a decision to remove Ms.
Brison. Ms. Brison appealed to the Board.
An administrative judge (“AJ”) at the Board upheld
the removal action. Brison v. Dep’t. of Veterans Affairs,
No. CH-0752-10-0869-I-1 (M.S.P.B. Oct. 7, 2011) (“Initial
1 We refer to the patient as “Mr. C” to maintain his
privacy.
BRISON v. DVA 3
Decision”). The AJ concluded that the VA proved a charge
of “inappropriate conduct toward a patient,” which it
found was a serious charge warranting removal. Id. at 7.
The full Board reviewed the AJ’s decision, and with one
modification relating to the length of Ms. Brison’s service
being a mitigating factor, concluded that the AJ’s decision
was correct. Brison v. Dep’t. of Veterans Affairs, No. CH-
0752-10-0869-I-1 (M.S.P.B. Dec. 3, 2011) (“Final Order”).
Ms. Brison petitioned for review. We have jurisdic-
tion pursuant to 5 U.S.C. § 7703.
DISCUSSION
Our standard of review requires us to “hold unlawful
and set aside any agency action, findings, or conclusions
found to be--(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c). Jacobs v. Dep’t of Justice,
35 F.3d 1543, 1547 (Fed. Cir. 1994). We will not overturn
a Board decision as long as it is supported by relevant
evidence that a “reasonable mind might accept as ade-
quate to support a conclusion.” Jacobs v. Dep't of Justice,
35 F.3d 1543, 1546 (Fed. Cir. 1994) (citing Brewer v. U. S.
Postal Serv., 647 F.2d 1093, 1096 (Ct. Cl. 1981)).
According to Ms. Brison, the Board’s decision over-
looks evidence that contradicts the evidence upon which
the Board relied to reach its conclusion. For example, Ms.
Brison argues that Ms. Hoerner modified her conclusion
from her earlier sworn statement and Mr. C’s testimony
conflicted with other testimony regarding the incident.
While Ms. Brison highlights some evidence that sup-
ports her arguments, substantial evidence still supports
the Board’s findings and conclusions. The substantial
evidence includes sworn statements and testimony from
Ms. Hoerner, Mr. C, and other individuals involved either
4 BRISON v. DVA
before or after the incident. Even Ms. Brison’s central
piece of contradictory evidence—a March 2010 letter from
Ms. Hoerner in which Ms. Hoerner states that she “mis-
judged” the incident between Ms. Brison and Mr. C. (J.A.
213)—at best only diminishes Ms. Hoerner’s original
conclusion about the incident. But the letter never once
refutes Ms. Hoerner’s narrative describing what Ms.
Brison did and said and how Mr. C reacted to Ms. Brison’s
actions.
Ms. Brison also argues that the Board is required to
make findings on all relevant Douglas factors, 2 and that
the Board failed to do so here. To support her argument,
Ms. Brison cites to Sekerak v. Railroad Retirement Bd.,
101 F.3d 714 (1996), which cites to VanFossen v. Dep’t of
Hous. & Urban Dev., 748 F.2d 1579 (Fed. Cir. 1984).
VanFossen states that “[i]n determining an appropriate
penalty the Board is not required to articulate irrelevant
factors, but failure to consider a significant mitigating
circumstance constitutes an abuse of discretion.”
VanFossen, 748 F.2d at 1581 (internal citations omitted).
We have considered VanFossen, and it does not help
Ms. Brison’s case. Unlike VanFossen, the Board here did
not fail to consider a significant mitigating circumstance.
Indeed, the deciding official addressed each of the Doug-
las factors in a detailed memorandum dedicated to that
topic. J.A. 288–91. The Board then reviewed and consid-
ered the deciding official’s memorandum and highlighted
several relevant Douglas factors. Initial Decision at 12–
13. The Board’s decision explicitly states that “there were
no mitigating circumstances lessening the seriousness of
her misconduct,” (Initial Decision at 13) (emphasis added)
let alone a significant mitigating circumstance. In its
2 Douglas v. Veterans Admin., 5 M.S.P.R. 280(1981) outlines relevant factors to be considered when
assessing penalties.
BRISON v. DVA 5
Final Order, the Board then reconsidered the Douglas
factors and even reweighed the appellant's length of
service as a mitigating factor, ultimately concluding that
the Initial Decision was correct. Final Order at 21.
While the Board’s explicit discussion of the Douglas
factors is short and highlights only a few factors, we are
not persuaded that this resulted in reversible error. We
have previously noted our aversion to “ritualistic formali-
ty that is of no value to us in our review.” Nagel v. Dep’t
of Health & Human Servs., 707 F.2d 1384, 1386 (Fed. Cir.
1983). Indeed, we held in Nagel that “no reversible error
was committed by the board . . . when it discussed only
those factors listed in the Douglas case it deemed rele-
vant.” Id. at 1386–87. And we decline to upset a Board
decision just because it does not explicitly address every
reason behind the Board’s action. Id. at 1387 (noting that
“[a]lthough articulation of the reasons for an administra-
tive action may lead to greater deference by a court, the
agency action still is sustained unless found to be arbi-
trary, capricious, an abuse of discretion, contrary to law,
or unsupported by substantial evidence”).
CONCLUSION
Ms. Brison advances several other arguments, but we
find these arguments equally unpersuasive. We find no
reversible error in the Board’s decision and therefore
affirm.
AFFIRMED