981 F.3d 1356
Fed. Cir.2020Background
- Charles Harrington Jr., a VA police officer, photographed a document on a secure VA server and sent the photo to a former VA officer on June 9, 2017.
- On June 23, 2017 Congress enacted the VA Accountability and Whistleblower Protection Act, including 38 U.S.C. § 714, which expedited VA removals, lowered Board review to the substantial-evidence standard, and barred the Board from mitigating agency-imposed penalties.
- VA removed Harrington under § 714; the MSPB affirmed removal based on substantial evidence of misconduct but did not assess the reasonableness of the removal penalty.
- Harrington appealed pro se to the Federal Circuit; after briefing the court decided Sayers v. Dep’t of Veterans Affairs, which held that § 714 requires the Board to review the entirety of the agency decision including penalty choice and that § 714 is not retroactive.
- The Federal Circuit held Harrington had not waived Sayers-based arguments, vacated the MSPB decision, concluded § 714 cannot be applied to charges based on pre-enactment conduct, and remanded to the Board (and the agency) for further proceedings consistent with Sayers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the MSPB must review the reasonableness of the penalty under § 714 | Harrington: Board must consider whether removal is a reasonable penalty, even if it cannot mitigate | VA: Because the Board lacks authority to mitigate penalties under § 714, it should not review penalty severity | Court: Sayers controls; Board must review the penalty as part of its § 714 review; remand required |
| Whether § 714 applies retroactively to misconduct that occurred before enactment | Harrington: § 714 does not apply retroactively | VA: The retroactivity issue was not briefed and should not be considered on appeal | Court: Excused waiver; § 714 cannot be applied retroactively; vacated removal and remanded to Board and agency; left open review under other statutes |
Key Cases Cited
- Sayers v. Dep’t of Veterans Affairs, 954 F.3d 1370 (Fed. Cir. 2020) (Board must review entire agency decision including penalty and § 714 not retroactive)
- Coradeschi v. DHS, 439 F.3d 1329 (Fed. Cir. 2006) (Merit Systems Protection Board jurisdiction reviewed de novo)
- McEntee v. MSPB, 404 F.3d 1320 (Fed. Cir. 2005) (legal determinations by the Board reviewed for correctness)
- Singleton v. Wulff, 428 U.S. 106 (1976) (discretion to consider issues not raised below)
- L.E.A. Dynatech, Inc. v. Allina, 49 F.3d 1527 (Fed. Cir. 1995) (factors for excusing waiver)