Batrina Martin v. Department of the Navy

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BATRINA MARTIN,
Petitioner
v.
DEPARTMENT OF THE NAVY,
Respondent
______________________
2024-2230
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-18-0363-I-1.
______________________
Decided: May 11, 2026
______________________
S TEPHANIE RAPP -T ULLY , Tully Rinckey PLLC, Wash-
ington, DC, for petitioner.
N ATHANAEL YALE , Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by ELIZABETH
MARIE HOSFORD, P ATRICIA M. MC CARTHY , BRETT SHUMATE.
______________________
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MARTIN v. NAVY 2
Before P ROST and T ARANTO, Circuit Judges, and K OVNER ,
District Judge.1
P ER CURIAM .
Dr. Batrina Martin formerly worked as a full-time
Health Systems Specialist in Portsmouth, Virginia, for the
Department of the Navy’s Naval Medical Center (agency).
In April 2017, the agency removed her from federal employ-
ment under 5 U.S.C. § 7513(a), which allows removal “for
such cause as will promote the efficiency of the service,”
based on four charges—specific absences from work not
supported by required medical documentation, a larger set
of absences over an extended period, untimely completion
of work, and misuse of government computer resources.
Dr. Martin appealed her removal to the Merit Systems Pro-
tection Board (Board), and in the proceeding, she submit-
ted additional medical records. The Board-assigned
administrative judge (AJ) affirmed the agency’s removal,
without addressing those additional records. See Martin
v. Department of the Navy, No. DC-0752-18-0363-I-1, 2018
WL 5018839 (M.S.P.B. Oct. 12, 2018) (Initial Decision);
J.A. 44–57.2 The full Board affirmed the Initial Decision
as modified by supplementing the analysis to address the
additional medical evidence. See Martin v. Department of
the Navy, No. DC-0752-18-0363-I-1, 2024 WL 2992960
(M.S.P.B. June 13, 2024) (Final Decision). Dr. Martin ap-
peals. We now affirm.
1 Honorable Rachel P. Kovner, District Judge,
United States District Court for the Eastern District of
New York, sitting by designation.
2 We cite the native page numbers of the Initial De-
cision, found in the Joint Appendix starting at J.A. 44.
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MARTIN v. NAVY 3
I
A
Dr. Martin worked for the federal government for more
than three decades, about two-thirds of that time at the
agency. In 2013, while working full-time for the agency,
she qualified for unpaid leave under the Family Medical
Leave Act (FMLA) of 1993, Pub. L. 103-3, 107 Stat. 6 (cod-
ified at 29 U.S.C. §§ 2601–54; 5 U.S.C. §§ 6381–87), which
entitles qualifying employees to twelve administrative
workweeks of unpaid leave during a twelve-month period,
see J.A. 631–32; see also 5 U.S.C. §§ 6382(a)(1)(D), 6383.
On December 12, 2014, the agency sent Dr. Martin a
formal Letter of Requirement concerning her absences.
J.A. 534–37. It stated, as relevant here, that her twelve-
month period of FMLA entitlement had ended; it was “im-
perative that [the agency] can depend on [her] for full-time
regular employment”; “[e]xcessive absenteeism adversely
impacts the efficiency of [the agency’s] mission and the
scheduling of work”; “the granting of leave . . . must be
monitored if abuse is suspected”; and starting immediately,
in order for Dr. Martin to receive approval for any sick
leave, annual leave, or leave without pay “for sick leave
purposes,” she would have to provide acceptable medical
documentation that “address[es] [her] incapacity for work”
and is signed personally by her treating physician. J.A.
534–35.
In 2015, the agency several times indicated to Dr. Mar-
tin that, although she had procured entitlement to FMLA
leave (subject to its limits) during another twelve-month
period, she was not properly specifying whether particular
absences were for FMLA purposes and was not supplying
the documentation required by the December 2014 Letter.
See J.A. 309–10 (Feb. 2015); J.A. 144–45 (May 2015); J.A.
544–47 (Nov. 2015). In 2015 and again in 2016, the agency
also suspended Dr. Martin for not timely completing
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MARTIN v. NAVY 4
assignments. J.A. 329–32 (three-day suspension in Sep-
tember 2015); J.A. 343–47 (ten-day suspension in June
2016).
In August 2016, the agency notified Dr. Martin that
she had exhausted her authorized FMLA leave, would not
be eligible for additional FMLA leave until December 16,
2016, and did not then have any available (unused) annual
or sick leave. J.A. 549–51. On September 28, 2016, the
agency assigned her a task (preparing minutes for a meet-
ing held that day) to be completed by October 6. J.A. 151.
The record indicates that she characterized the task as
“menial,” J.A. 152, and she did not timely complete the as-
signment, J.A. 151–52.
Dr. Martin was absent from work from September 29,
2016, through October 31, 2016, without authorization.
J.A. 781. During the absence, on October 11, Dr. Martin’s
supervisor had telephoned her, indicating that she had ac-
crued “enough leave to account for [her] absences until” Oc-
tober 4, 2016, and that, starting on October 5, additional
absences were unauthorized unless she could provide ac-
ceptable documentation, as required since December 2014.
J.A. 539. On October 24, 2016, Dr. Martin furnished three
medical documents to the agency, which determined, how-
ever, that they did not adequately show her incapacity to
work during October 2016. J.A. 539, 541.
After Dr. Martin returned to work in November, one of
her supervisors visited her office and observed material on
her agency-issued computer screen that appeared related
to potentially other employment and not her agency work.
J.A. 153. Because the agency prohibits use of its computers
for “personal financial gain,” J.A. 377–79; see 5 C.F.R.
§ 2635.704, it searched her agency-issued computer, re-
vealing documents, website activity, and pay records from
the latter part of 2016 indicating that Dr. Martin was
working part-time as an instructor at two universities.
J.A. 153–54; see J.A. 171–306. As for the assignment given
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MARTIN v. NAVY 5
on September 28, Dr. Martin had been given multiple ex-
tensions, the final deadline being November 21, but she did
not complete the task until December 1. J.A. 151–52.
In February 2017, the agency issued Dr. Martin a no-
tice of proposed removal based on four charges. J.A. 662–
71. First, Dr. Martin was charged with unauthorized ab-
sences on October 5–7, 14, and 17–19, 2016, based on her
failure to submit acceptable medical documentation for be-
ing absent those seven days. J.A. 663. Second, she was
charged with failing to maintain a regular work schedule
for a full-time employee (despite the warning in December
2014), because, from August 5 to December 15, 2016, she
was absent on 36.5 of the 91.0 workdays in the period, i.e.,
roughly 40% of the time, none of those absences being
FMLA leave. Id. Third, Dr. Martin was charged with not
timely completing work assignments, reflected by her 2015
and 2016 suspensions and the September 28, 2016 assign-
ment she submitted late, even with multiple extensions.
J.A. 664. Fourth, Dr. Martin was charged with misusing
her agency-issued computer for personal financial gain as
a university instructor. J.A. 664–65.
On April 3, 2017, the agency’s deciding official ruled
against Dr. Martin on all four charges, reciting her an-
swers to the charges and making findings of inadequate
documentation for the October absences (partly because
Dr. Martin refused to furnish adequate documentation for
confidentiality reasons), extensive absence from work, un-
timely completion of work despite extensions, and use of
the government computer for private-university teaching.
J.A. 149–54. The deciding official then considered the fac-
tors outlined in Douglas v. Veterans Administration, 5
M.S.P.R. 280, 305–07 (1981). J.A. 154–59. That consider-
ation included recitation of a long series of disciplinary ac-
tions (such as letters of reprimand, counseling,
requirement, or caution plus suspensions), J.A. 156–57, as
well as a finding that the “numerous health issues” Dr.
Martin asserted did not “excuse[] [her] behavior,” J.A. 158.
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MARTIN v. NAVY 6
Based on the Douglas analysis, the deciding official deter-
mined that Dr. Martin would be removed effective April 6,
2017. J.A. 159. The official stated that “each of-
fense/charge alone supports [Dr. Martin’s] removal[.]” Id.
B
In March 2018, Dr. Martin appealed her removal to the
Board. In September 2018, as part of her prehearing sub-
missions, Dr. Martin identified medical evidence that she
had not previously furnished to the agency (“the additional
evidence”). The additional evidence related to a mid-to-late
2016 diagnosis of breast cancer,3 a November 2016 biopsy
and related physical pain extending into 2017, and several
health conditions, some of which affected her capacity to
work before October 2016 and after January 2017. J.A.
131–37; J.A. 75–81; see also J.A. 523; J.A. 630. That evi-
dence was provided in camera. See J.A. 28.
On October 12, 2018, after holding the hearing re-
quested by Dr. Martin, the AJ affirmed the agency’s re-
moval. The AJ sustained each of the four charges against
Dr. Martin; determined that there was a nexus between
the conduct found and the efficiency of the federal service;
and found the penalty of removal reasonable, specifically
considering mitigating factors and more generally consid-
ering the Douglas factors. Initial Decision, at 1–6. The AJ
reached those conclusions without addressing the addi-
tional medical evidence that Dr. Martin had submitted to
the Board. See id.
Dr. Martin sought full Board review, arguing, as rele-
vant now, that the AJ improperly failed to address the new
3 There are varying accounts of when Dr. Martin was
diagnosed, including August 2016, J.A. 645, October 2016,
J.A. 151, and “on or around October 2016,” J.A. 769. On
appeal here, Dr. Martin asserts August 2016, citing to the
Initial Decision. Martin Opening Br. at 6.
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MARTIN v. NAVY 7
medical evidence at issue, which, Dr. Martin said, should
have precluded sustaining the first three charges. J.A. 28–
29. She also challenged, on several grounds, the AJ’s find-
ing for the agency on the fourth charge (her use of an
agency-issued computer for personal financial gain), con-
tending, for example, that even if she used the agency-is-
sued computer for her university work, she could not have
misused the computer because the relevant activity oc-
curred outside of her scheduled hours at the agency. J.A.
29–31.
The full Board upheld the AJ’s denial of relief, with
some supplementation of the rationale. Addressing Dr.
Martin’s additional evidence, the Board determined that
Dr. Martin had not provided any reason that the additional
evidence rendered her unable to provide the agency with
acceptable documentation that she was incapacitated for
duty, and so it sustained the first (unauthorized absence)
charge. Final Decision, at *2. With respect to the second
and third charges, the Board reasoned that Dr. Martin pro-
vided no basis for disturbing the AJ’s finding about Dr.
Martin’s failure to maintain a regular, full-time work
schedule and merely reiterated arguments regarding her
failure to timely complete work assignments, which the AJ
had reasonably rejected. Id. at *3. Regarding the fourth
charge (government computer use), the Board found no re-
versible error in the AJ’s upholding of the charge based on
the finding that Dr. Martin had admitted to using the com-
puter in violation of the agency’s regulations. Id. As to the
removal penalty, the Board concluded that, even with Dr.
Martin’s medical conditions assigned more weight as a mit-
igating factor, the Douglas factors still supported removal
as one reasonable penalty the agency could impose. Id. at
*4. The Board thus affirmed the Initial Decision “[e]xcept
as expressly modified to supplement the administrative
judge’s analysis of the agency’s unauthorized absence
charge and the reasonableness of the penalty[.]” Id. at *1.
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MARTIN v. NAVY 8
Dr. Martin timely appealed to this court. We have ju-
risdiction under 28 U.S.C. § 1295(a)(9).4
II
On appeal, Dr. Martin challenges her removal entirely
under the standard requiring that a removal be “for such
cause as will promote the efficiency of the service,” 5 U.S.C.
§ 7513(a), appealing the Board’s finding that the agency
proved its charges and reasonably chose the penalty of re-
moval for the proved conduct. Dr. Martin’s challenge rests
on various contentions about her additional medical evi-
dence supplied to the AJ (but not previously to the agency),
chiefly the contention that the AJ did not address that evi-
dence. She does not raise issues about discrimination, the
FMLA, whistleblowing, or other matters.
We may set aside the Board’s decision only if it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
4 Before the Board, Dr. Martin unsuccessfully as-
serted certain affirmative defenses of discrimination. See
Initial Decision, at 6–10; Final Decision, at *1, 3–4. Those
assertions, unless abandoned, would render her appeal a
mixed case whose resolution by the Board would be outside
our jurisdiction to review. See 5 U.S.C. §§ 7702,
7703(b)(1)(A), (b)(2); Perry v. Merit Systems Protection
Board, 582 U.S. 420, 431–32 (2017). But we read her re-
quired “Statement Concerning Discrimination” (Form 10)
under Federal Circuit Rule 15(c)(1) as abandoning those
defenses—not just in this forum but in any forum. Form
10, ECF No. 14 (Dec. 30, 2024); see also Response Br. at 9
n.4 (government also so reading the Form). That abandon-
ment is necessary and sufficient for us to exercise jurisdic-
tion here. See Harris v. Securities & Exchange
Commission, 972 F.3d 1307, 1318 (Fed. Cir. 2020).
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MARTIN v. NAVY 9
followed; or (3) unsupported by substantial evidence[.]” 5
U.S.C. § 7703(c). We review the Board’s legal rulings de
novo, Chambers v. Department of the Interior, 602 F.3d
1370, 1375 (Fed. Cir. 2010), and its factual findings for sub-
stantial-evidence support, Knox v. Department of Justice,
125 F.4th 1059, 1064 (Fed. Cir. 2025). Substantial evi-
dence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion,” Consol-
idated Edison Co. v. National Labor Relations Board, 305
U.S. 197, 229 (1938), even if an opposite conclusion might
also be supportable, Consolo v. Federal Maritime Commis-
sion, 383 U.S. 607, 619–20 (1966). Dr. Martin bears the
burden of establishing errors in the Board’s determina-
tions. See Harris v. Department of Veterans Affairs, 142
F.3d 1463, 1467 (Fed. Cir. 1998). Applying those stand-
ards, we reject Dr. Martin’s arguments.
A
Dr. Martin argues that we should set aside the Final
Decision because the AJ in the Initial Decision did not ad-
dress the additional medical evidence Dr. Martin submit-
ted for review in camera. Martin Opening Br. 8―9, 11―13.
That argument focuses on the wrong decision.
As the Initial Decision itself and the Board’s regula-
tions make clear, the Initial Decision was not a final deci-
sion. See Initial Decision, at 11; 5 C.F.R. §§ 1201.113(a),
1201.114, 1201.115. Within the 35 days allowed, Dr. Mar-
tin petitioned for full Board review, the Board then granted
such review, and the Board thereafter issued the actual fi-
nal decision, which addressed the evidence now at issue.
Under 28 U.S.C. § 1295(a)(9), what we review is the “final
order or final decision” of the Board pursuant to 5 U.S.C.
§ 7703(b)(1), (d).
In rendering the Final Decision, the Board expressly
considered and made modified findings and conclusions
based on that medical evidence, as Dr. Martin recognizes.
Martin Opening Br. at 9. Because “the Board is free to
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MARTIN v. NAVY 10
substitute its judgment for that of one of its administrative
judges” (while giving appropriate weight to the AJ’s de-
meanor-based findings), the question for us is not whether
the Initial Decision improperly failed to address Dr. Mar-
tin’s in camera evidence in the first instance, but whether
the Board failed adequately to address the evidence in the
Final Decision. See Leatherbury v. Department of Army,
524 F.3d 1293, 1304 (Fed. Cir. 2008). Although Dr. Martin
cites Sayers v. Department of Veterans Affairs, 954 F.3d
1370, 1377 (Fed. Cir. 2020), and Strickland v. White, 105
F.4th 285 (5th Cir. 2024) (a mixed case that went to district
court, then the Fifth Circuit), those decisions are not to the
contrary: In both, the AJ’s decision did become the final de-
cision, without any review by the full Board. See Sayers,
954 F.3d at 1372 & nn.1–2, 1373; Strickland, 105 F.4th at
290.
B
Dr. Martin has also not shown reversible error regard-
ing the Board’s findings about the additional evidence. See
Martin Opening Br. at 14–18. All or most of Dr. Martin’s
contention in this respect concerns the first charge, i.e., her
failure to provide administratively acceptable documenta-
tion for seven specific days of absence in October 2016. On
that charge, the Board determined that she had not shown
how the additional medical evidence undermined the find-
ing of such a failure, which rested in part on her simple
refusal to supply confidential medical records. Final Deci-
sion, at *2. We see no error in that determination.
Much of Dr. Martin’s evidence does not relate to Octo-
ber 2016. See J.A. 131–37; J.A. 75–81. For example, the
biopsy pain evidence concerns a time after October 2016,
J.A. 132; see also J.A. 523, and other highlighted evidence
appears limited to conditions before October 2016, such as
the physician’s estimate that she was incapacitated from
January 28, 2016, to February 12, 2016, J.A. 105. A deci-
sion by an examiner for unemployment benefits, which was
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MARTIN v. NAVY 11
not for FMLA leave, does not imply adequacy of Dr. Mar-
tin’s medical documentation, as the examiner indicated.
J.A. 779–83 (documentation “may not have met the em-
ployer’s criteria”). Dr. Martin was under a specific instruc-
tion requiring her to supply adequate documentation for
health-related absences, like the October absences at issue,
not covered by FMLA leave, and the lawfulness and propri-
ety of that instruction are not in dispute here. The addi-
tional medical evidence does not show that her conditions
prevented her from supplying such documentation before
the removal. See Final Decision, at *2 (relying on Thom
v. Department of the Army, 114 M.S.P.R. 169, 173 [¶ 6]
(2010)).
Dr. Martin adverts to the second charge, i.e., her failure
to maintain a regular, full-time schedule, but as the Board
reasonably explained, the additional medical evidence has
not been shown to undermine the finding that the charge
was proved. Final Decision, at *3. In her briefs here, Dr.
Martin emphasizes her substantial health problems before
her removal, but she has not shown how those problems,
by themselves, undermine the second charge. Dr. Martin
also makes no meaningful argument about the medical ev-
idence and the untimely-completion-of-assignment charge,
as to which the evidence shows that, after returning to
work November 1, 2016, she was granted two further ex-
tensions to complete the assignment to November 21, 2016,
but failed to timely do so until December 1, 2016, J.A. 151–
52, despite engaging in work related to her university
teaching during early-to-mid November 2016, see J.A. 171,
223–28, 293; see also J.A. 153–54. In addition, for none of
the charges has Dr. Martin shown substantive errors or de-
ficiencies of analysis in the Board’s decision like those iden-
tified in the Sayers and the Strickland cases, both of which
involved the “reasonableness” standard of 38 U.S.C. § 714,
which is not at issue here. See Sayers, 954 F.3d at 1378
(rejecting the notion that removal must be upheld even for
minor infraction); Strickland, 105 F.4th at 293–94 (finding
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MARTIN v. NAVY 12
improper failure to consider entire decision and improper
preclusion of affirmative defenses and mitigating circum-
stances).
C
Dr. Martin challenges the Board’s determination that
removal was a reasonable penalty and its application of the
Douglas factors. We see no error regarding the penalty.
For one thing, as the Board noted, the agency had con-
cluded that any one of the four charges sufficed to warrant
Dr. Martin’s removal. Final Decision, at *4; see also Initial
Decision, at 6; J.A. 159. And the Board affirmed without
modification the AJ’s finding in the Initial Decision for the
agency on the fourth charge, which involved her use of an
agency-issued computer for personal financial gain (her
outside, unrelated teaching activities). Final Decision, at
*3; Initial Decision, at 4–5; J.A. 29–31. On appeal here, Dr.
Martin presents no challenge regarding that charge. More-
over, the Board considered Dr. Martin’s mitigating evi-
dence and appropriately determined that removal was a
reasonable penalty under all the circumstances. Final De-
cision, at *4. And it did so after modifying the Initial Deci-
sion to account specifically for Dr. Martin’s additional
medical evidence.
The Board’s review of an agency’s penalty decision is
deferential, see, e.g., Lachance v. Devall, 178 F.3d 1246,
1251 (Fed. Cir. 1999), and in our review of the Board’s de-
cision on that issue (as on others), our task is not to “re-
weigh the evidence,” Henry v. Department of the Navy, 902
F.2d 949, 951 (Fed. Cir. 1990); see also Campana v. Depart-
ment of the Navy, 873 F.2d 289, 290–91 (Fed. Cir. 1989)
(affirming removal for unsatisfactory attendance weighed
against mitigation considerations pertaining to illnesses
during those absences). Dr. Martin’s reliance on Malloy
v. United States Postal Service, 578 F.3d 1351 (Fed. Cir.
2009), is misplaced. There, the AJ failed to consider mate-
rial medical evidence in its analysis of the Douglas factors,
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MARTIN v. NAVY 13
and the full Board denied review under 5 C.F.R.
§ 1201.115. No such circumstances are present here. The
Board in this matter used Dr. Martin’s medical evidence
reviewed in camera in the Final Decision.
III
We have considered Dr. Martin’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm the Board’s final decision.
The parties shall bear their own costs.
AFFIRMED
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