Case: 19-1882 Document: 41 Page: 1 Filed: 12/07/2020
United States Court of Appeals
for the Federal Circuit
______________________
CHARLES W. HARRINGTON, JR.,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2019-1882
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0714-18-0615-I-1.
______________________
Decided: December 7, 2020
______________________
ROBERT JASON FOWLER, Covington & Burling LLP,
Washington, DC, argued for petitioner.
ROBERT R. KIEPURA, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent. Also represented by
JEFFREY B. CLARK, ALLISON KIDD-MILLER, ROBERT EDWARD
KIRSCHMAN, JR.; DANA HECK, Office of General Counsel,
United States Department of Veterans Affairs, St. Peters-
burg, FL.
______________________
Before NEWMAN, DYK, and HUGHES, Circuit Judges.
Case: 19-1882 Document: 41 Page: 2 Filed: 12/07/2020
2 HARRINGTON v. DVA
HUGHES, Circuit Judge.
This case involves the removal of a federal employee,
Charles Harrington, Jr., who worked as a police officer for
the Department of Veterans Affairs. VA removed Mr. Har-
rington based on
38 U.S.C. § 714, which streamlined disci-
plinary actions by VA and placed certain limitations on the
review of those actions by the Merit Systems Protection
Board. The MSPB affirmed Mr. Harrington’s removal. Mr.
Harrington appealed to this court.
After briefing concluded here, this court decided Sayers
v. Dep’t of Veterans Affairs,
954 F.3d 1370 (Fed. Cir. 2020),
which included two holdings relevant to this appeal. First,
we held that the proper interpretation of § 714 requires the
Board to review the entire decision below, including the
choice of penalty. Second, we held that § 714 does not ap-
ply to proceedings instituted based on conduct occurring
before its enactment. Mr. Harrington submitted Sayers as
supplemental authority.
Because we conclude that Mr. Harrington has not
waived his arguments regarding Sayers, we vacate
Mr. Harrington’s removal and remand to the Board for fur-
ther proceedings consistent with our decision in Sayers.
I
Before his removal, Mr. Harrington was a police officer
at the Bay Pines VA Healthcare System. On June 9, 2017,
Mr. Harrington sent a photograph of a document contained
on the secure agency server to a former VA police officer,
Carlton Hooker, who was no longer employed by VA. VA
had provided Mr. Hooker with a text file of the contents of
that document in response to a FOIA request but did not
provide the document itself.
Two weeks after Mr. Harrington sent the photo to
Mr. Hooker, on June 23, 2017, Congress enacted the De-
partment of Veterans affairs Accountability and Whistle-
blower Protection Act of 2017, which established 38 U.S.C.
Case: 19-1882 Document: 41 Page: 3 Filed: 12/07/2020
HARRINGTON v. DVA 3
§ 714, among other provisions. Pub. L. No. 115-41, § 202,
131 Stat. 862, 869–73. Section 714 speeds up removal pro-
ceedings, § 714(c), lowers VA’s burden of proof at the Board
from a preponderance of the evidence to substantial evi-
dence, § 714(d)(2)(A), (d)(3)(B), and eliminates the Board’s
authority to mitigate VA’s imposed penalty, § 714(d)(2)(B),
(d)(3)(C).
Soon after § 714’s enactment, VA brought a removal ac-
tion under § 714 against Mr. Harrington. The Notice of
Proposed Removal alleged, among other things, that
Mr. Harrington committed misconduct by sending the pho-
tograph of documents kept on the agency server to Mr.
Hooker. VA issued a decision removing Mr. Harrington,
and Mr. Harrington appealed to the MSPB, representing
himself pro se.
In its review, the MSPB determined that VA did not
err in removing Mr. Harrington because it found that sub-
stantial evidence supported the charge of misconduct based
on sending the photograph to Mr. Hooker. The Board did
not review the appropriateness of the severity of the pen-
alty.
II
We review MSPB decisions for whether they are (1) ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.
5 U.S.C.
§ 7703(c). “We review whether the MSPB has jurisdiction
over an appeal de novo.” Coradeschi v. DHS,
439 F.3d
1329, 1331 (Fed. Cir. 2006). “We review the Board’s deter-
minations of law for correctness without deference to the
Board’s decision.” McEntee v. MSPB,
404 F.3d 1320, 1325
(Fed. Cir. 2005).
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4 HARRINGTON v. DVA
III
On appeal, Mr. Harrington argues that the Board erred
in upholding his removal because the Board failed to con-
sider the severity of VA’s penalty relative to his alleged
misconduct. In his notice of supplemental authority,
Mr. Harrington emphasizes that our recent Sayers decision
answered this question in his favor. He also notes that we
held in Sayers that § 714 does not apply retroactively. Alt-
hough retroactivity was not raised in the briefs, Mr. Har-
rington requests that we exercise our discretion to address
this issue. We agree with Mr. Harrington on both issues
and therefore vacate the Board’s decision.
A
Mr. Harrington argues that the Board erred by failing
to consider the reasonableness of the penalty of removal.
Under § 714(a)(1), “[t]he Secretary may remove, de-
mote, or suspend [an employee] if the Secretary determines
the performance or misconduct of the [employee] warrants
such removal, demotion, or suspension.” Appeals are sub-
ject to expedited review, and “the administrative judge
shall uphold the decision of the Secretary . . . if the decision
is supported by substantial evidence.” § 714(d)(1)–(2)(A).
“[I]f the decision of the Secretary is supported by substan-
tial evidence, the administrative judge shall not mitigate
the penalty prescribed by the Secretary.” § 714(d)(2)(B).
The Administrative Judge read these sections to mean
that because the Board could not mitigate the penalty, it
similarly should not consider the reasonableness of that
penalty in determining whether to sustain the adverse ac-
tion. Harrington v. Dep’t of Veterans Affs., No. AT-0714-
18-0615-I-1,
2019 WL 917330 (M.S.P.B. Feb. 19, 2019)
(“[I]n the absence of any Board authority to mitigate the
appellant’s removal, I conclude that the agency is entitled
to a Board decision affirming the appellant’s removal.”).
Mr. Harrington argues that this conflates the authority of
Case: 19-1882 Document: 41 Page: 5 Filed: 12/07/2020
HARRINGTON v. DVA 5
the Administrative Judge to mitigate a decision with their
authority to review a decision. He contends that barring
review of the severity of penalties “would give agencies the
unfettered ability to impose the harshest of penalties for
the most minor of indiscretions, which an administrative
judge would have to uphold so long as the underlying
charge is established.” Pet. Br. 19.
Our opinion in Sayers controls and mandates that re-
view of the penalty must be included in the Board’s review
of the adverse action. See Sayers, 954 F.3d at 1379. There,
we noted that “[t]he Board cannot meaningfully review [a]
decision if it blinds itself to the VA’s choice of action.” Id.
at 1375. “Deciding that an employee stole a paper clip is
not the same as deciding that the theft of a paper clip war-
ranted the employee’s removal.” Id.
The Board did not conduct a key portion of the analysis
under the proper interpretation of § 714, so remand to the
MSPB is required.
B
In Sayers, we also held that § 714 does not apply retro-
actively. Sayers, 954 F.3d at 1380. Though the parties did
not brief this issue, Mr. Harrington requests we consider
retroactivity.
Waiver is a discretionary issue. Singleton v. Wulff,
428
U.S. 106, 121 (1976). This court has recognized several rea-
sons for considering issues raised for the first time on ap-
peal: (i) the issue involves a pure question of law; (ii) the
proper resolution is beyond any doubt; (iii) the appellant
had no opportunity to raise the objection before appeal; (iv)
the issue presents significant questions of general impact;
or (v) the interest of substantial justice is at stake. L.E.A.
Dynatech, Inc. v. Allina,
49 F.3d 1527, 1531 (Fed. Cir.
1995).
Most of these elements apply here. Whether or not a
statute applies retroactively is a pure question of law, and
Case: 19-1882 Document: 41 Page: 6 Filed: 12/07/2020
6 HARRINGTON v. DVA
neither party disputes the fact that the relevant events
transpired before enactment of § 714. The proper resolu-
tion is beyond any doubt. Our opinion in Sayers directly
states that “§ 714 cannot be applied retroactively.”
954 F.3d at 1372. While Mr. Harrington could have argued
before the Board that the statute does not apply retroac-
tively, before Sayers, such a defense would have been diffi-
cult for a pro se litigant to mount. This is not a situation
in which sophisticated counsel could have anticipated Say-
ers. Further, Mr. Harrington “had a right to the substan-
tive civil service protections from improper or unjustified
removal in effect at the time of his alleged misconduct.” Id.
at 1381. To ignore this right would not be in the interest
of justice.
Despite the existence of various factors that support
excusing waiver here, the government argues that we
should not consider an issue that has not been briefed. We
agree that as a general matter an issue not raised until a
supplemental filing typically should not be reached. But
the unique facts of this case counsel against holding Mr.
Harrington to a strict waiver. This is particularly true be-
cause a remand is required in any event for the scope of
penalty review issue, which Mr. Harrington has ade-
quately preserved. See supra § III(A).
For these reasons, we hold that the § 714 action
brought against Mr. Harrington is improper because the
only remaining charges against him depend on conduct
predating enactment of § 714, which Sayers concluded is
impermissible. We express no opinion on whether removal
is appropriate under 5 U.S.C. Ch. 75, or any other applica-
ble provision. That determination is best left to the agency
on remand.
IV
Because the Department of Veterans Affairs cannot re-
move Mr. Harrington under § 714 without impermissibly
applying the statute retroactively, we vacate Mr.
Case: 19-1882 Document: 41 Page: 7 Filed: 12/07/2020
HARRINGTON v. DVA 7
Harrington’s removal and remand to the Merit Systems
Protection Board for further proceedings consistent with
Sayers. The Board in turn should remand to the agency.
VACATED AND REMANDED
COSTS
No costs.
