Opinion

Charles Harrington v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Feb 7, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

finding an appellant’s due process rights were not violated when he was not advised in advance that the deciding official might draw an inference from the nature of the charged misconduct

How later courts described this case

finding an appellant’s due process rights were not violated when he was not advised in advance that the deciding official might draw an inference from the nature of the charged misconduct

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHARLES WILLIAM HARRINGTON, DOCKET NUMBER

JR., AT-0752-21-0535-I-1

Appellant,

DATE: February 7, 2023

DEPARTMENT OF VETERANS

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Charles William Harrington, Jr., Palmetto, Florida, pro se.

Dana C. Heck, Esquire, St. Petersburg, Florida, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

sustained his removal for misconduct. Generally, we grant petitions such as this

one only in the following circumstances: the initial decision contains erroneous

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation or the erroneous application of the law to

the facts of the case; the administrative judge’s rulings during either the course of

the appeal or the initial decision were not consistent with required procedures or

involved an abuse of discretion, and the resulting error affected the outcome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. Title 5

of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we conclude that the petitioner

has not established any basis under section 1201.115 for granting the petition for

review. Therefore, we DENY the petition for review and AFFIRM the initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant, a Police Officer, accessed a law enforcement report in an

agency electronic database, photographed it, and sent the picture to a party

outside the agency, all without a legitimate business reason or authorization.

Initial Appeal File (IAF), Tab 5 at 60-62. Based on that misconduct, the agency

removed the appellant under chapter 75 of Title 5 of the U.S. Code based on two

charges: (1) conduct unbecoming a Federal police officer, and (2) violating the

agency information security rules of behavior and medical facility privacy

policy. 2 Id. at 37, 39-42, 51-55. The appellant appealed his removal to the

Board. IAF, Tab 1.

The agency previously removed the appellant for the same misconduct, in addition to

other alleged acts, under 38 U.S.C. § 714. Harrington v. Department of Veterans

Affairs, MSPB Docket No. AT-0714-18-0615-I-1, Initial Appeal File, Tab 5 at 19,

21-23, 280-83. The appellant appealed his removal to the Board, and the administrative

judge affirmed the removal in an initial decision. Harrington v. Department of

Veterans Affairs, MSPB Docket No. AT-0714-18-0615-I-1, Initial Decision (Feb. 19,

2019). The appellant appealed the initial decision to the U.S. Court of Appeals for the

Federal Circuit, which, following its reasoning in Sayers v. Department of Veterans

Affairs, 954 F.3d 1370 (Fed. Cir. 2020), vacated the appellant’s removal and remanded

¶3 After affording the appellant his requested hearing—at which the appellant

admitted to photographing and releasing the agency police report as charged, IAF,

Tab 45, Hearing Recording (HR) (testimony of the appellant) , 3—the

administrative judge affirmed the appellant’s removal, finding that the agency

proved its charges by preponderant evidence, that the appellant failed to prove his

affirmative defenses of harmful error and reprisal for whistleblower activity, and

that the agency proved a nexus between its action and the efficiency of the

service and the reasonableness of its penalty, IAF, Tab 48, Initial Decision (ID)

at 2-11. On review, among other contentions, the appellant argues that the

administrative judge made various errors in sustaining the agency’s charges and

finding the removal reasonable. Petition for Review (PFR) File, Tab 1. The

agency filed a response. PFR File, Tab 3.

¶4 After careful consideration of the appellant’s petition for review , we discern

no reason to disturb the initial decision. The appellant argues that the agency

committed a due process violation because the deciding official considered his

lack of remorse or acceptance of accountability for his actions even though the

proposing official never listed that as an aggravating factor. PFR File, Tab 1

at 32; HR (testimony of deciding official). However, the deciding official’s

conclusion that the appellant lacked remorse or accountability was a logical

inference from the record, including the appellant’s failure to cooperate with the

agency investigation into his misconduct and his failure, until the hearing, to

apologize for his actions. IAF, Tab 5 at 61-62; ID at 11 n.3. Thus, it was not

improper for the deciding official to find a lack of rehabilitative poten tial based

the case to the Board on the grounds that the administrative judge failed to consider the

reasonableness of the penalty and improperly applied 38 U.S.C. § 714 retroactively to

the appellant’s misconduct. Harrington v. Department of Veterans Affairs, 981 F.3d

1356, 1358-59 (Fed. Cir. 2020). The administrative judge then reversed the agency’s

action and remanded the matter to the agency. Harrington v. Department of Veterans

Affairs, MSPB Docket No. AT-0714-18-0615-M-1, Initial Decision (Mar. 31, 2020).

The current appeal is based on a new removal action.

The appellant repeated these admissions in his close of record brief. IAF, Tab 46 at 7.

on the appellant’s failure to accept responsibility. See Harding v. U.S. Naval

Academy, 567 F. App’x 920, 925-26 (Fed. Cir. 2014) (finding an appellant’s due

process rights were not violated when he was not advised in advance that the

deciding official might draw an inference from the nature of the charged

misconduct).

¶5 Regarding penalty, the appellant argues that the deciding official failed to

give any weight to mitigating factors, such as his length of service, fully

successful performance record, and lack of prior discipline. PFR File, Tab 1

at 31. However, the record shows that the deciding official considered these

factors in his penalty analysis. IAF, Tab 5 at 43. That these factors did not cause

the deciding official to mitigate the penalty does not mean that they were not

considered. As to the appellant’s argument that rehabilitative potential must be

assessed based on past misconduct, not the current matter, PFR File, Tab 1 at 32,

the appellant is taking a statement in Douglas v. Veterans Administration,

5 M.S.P.R. 280, 312-13 (1981), out of context, as it was part of a determination

that a particular appellant’s long disciplinary record weighed against finding

rehabilitative potential, not that the misconduct for which he was removed could

not be considered as part of that assessment.

¶6 In his initial decision, the administrative judge failed to address the

appellant’s claim that there was no evidence that he was informed of the rules of

behavior and the privacy policy that he allegedly violated. PFR File, Tab 1

at 24-25; IAF, Tab 46 at 7-8. Because knowledge of the rules and policy

allegedly violated is not an element of the agency’s charge, the appellant’s claim

is not relevant to whether the charge was properly sustained. See Wells v.

Department of Defense, 53 M.S.P.R. 637, 643-44 (1992). In addition, even if the

appellant had not been specifically informed of the rules and policy he was

alleged to have violated, it strains credulity that the appellant, a Police Officer,

did not know that law enforcement reports should not be photographed and given

to an individual outside of the agency. Regarding the argument that the

appellant’s photographing and releasing the information was not improper

because it had previously been released under the Freedom of Information Act,

PFR File, Tab 1 at 25-26; IAF, Tab 46 at 6-7, which the administrative judge also

did not address, the appellant cites nothing to support his claim that his conduct

was proper because the information had been previously released. Thus, the

appellant’s claims do not provide a basis to disturb the initial decision.

¶7 For the first time on petition for review, the appellant argues that: (1) the

charges should merge because they both allege the same underlying misconduct;

and (2) the conduct unbecoming a Federal police officer charge is

unconstitutionally vague. PFR File, Tab 1 at 20-24. The appellant has not

explained why he was unable to raise these arguments prior to the close of the

record before the administrative judge, and thus we need not consider them.

Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the

Board generally will not consider an argument raised for the first time in a

petition for review absent a showing that it is based on new and material evidence

not previously available despite the party’s due diligence).

¶8 In any event, if the charges were merged, the fact that a charge has been

merged into another does not mean that the duplicative charge is not sustained or

that the appellant’s misconduct somehow becomes less serious by virtue of the

merger. Shiflett v. Department of Justice, 98 M.S.P.R. 289, ¶ 12 (2005).

Furthermore, although he did not merge the two charges, the administrative judge

acknowledged that they were based on the same underlying set of facts, ID at 5,

and we discern no basis to find that he abandoned this premise in assessing the

reasonableness of the penalty, ID at 10-11. There is also no indication in the

record that the deciding official interpreted the appellant’s misconduct as

exceeding a single set of acts or sought to magnify the penalty based on the fact

that the same acts were used to support two charges. IAF, Tab 5 at 39 -44; HR

(testimony of the deciding official). Thus, even if the administrative judge erred

by not merging the charges, this error did not prejudice the appellant’s rights and

provides no basis to disturb the initial decision. 4 Panter v. Department of the Air

Force, 22 M.S.P.R. 281, 282 (1984).

NOTICE OF APPEAL RIGHTS 5

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described bel ow do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

Regarding the claim that the conduct unbecoming charge was vague and thus invalid,

the Board has held that a charge of “conduct unbecoming,” much like a charge of

“improper conduct,” has no specific elements of proof; it is esta blished by proving that

the employee committed the acts alleged in support of the broad label. Canada v.

Department of Homeland Security, 113 M.S.P.R. 509, ¶ 9 (2010). Here, the agency’s

narrative under the charge set forth his actions in detail and describe d why they were

unbecoming a police officer. IAF, Tab 5 at 51. Thus, there was nothing improper in

the agency’s charge. See Otero v. U.S. Postal Service, 73 M.S.P.R. 198, 202-03 (1997)

(finding an appellant was not harmed by the agency’s use of a broad label such as

“improper misconduct” when the specificity provided by the agency’s narrative of the

appellant’s misconduct satisfied notice and fairness requirements); Gallagher v. U.S.

Postal Service, 6 M.S.P.R. 572, 575 (1981) (finding that an agency regulation

prohibiting “conduct unbecoming” an employee was not unconstitutionally vague as

applied to an appellant when the charges in the proposal notice were clear, specific, and

informed the appellant of the reasons for his proposed removal).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other secur ity. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial deliver y or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protectio n

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice descri bed in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 6 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judic ial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.