# Charles Harrington v. Department of Veterans Affairs

> Merit Systems Protection Board · February 7, 2023

URL: https://www.frixlaw.com/law-library/cases/9372900

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** February 7, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9372900

## How later opinions describe it (automated extraction)

- 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

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

CHARLES WILLIAM HARRINGTON, DOCKET NUMBER
JR., AT-0752-21-0535-I-1
Appellant,

v.
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THIS FINAL ORDER IS NONPRECEDENTIAL 1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

1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2

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.

2
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

¶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.
3
The appellant repeated these admissions in his close of record brief. IAF, Tab 46 at 7.
4

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
5

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
6

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

4
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).
5
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.
7

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
8

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
9

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:

6
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.
10

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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9372900. Public record. Not legal advice.