CHARLES W. HARRINGTON, JR., Petitioner v. DEPARTMENT OF VETERANS AFFAIRS, Respondent
2019-1882
United States Court of Appeals for the Federal Circuit
Decided: December 7, 2020
Petition for review of the Merit Systems Protection Board in No. AT-0714-18-0615-I-1.
ROBERT R. KIEPURA, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, 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. Petersburg, FL.
Before NEWMAN, DYK, and HUGHES, Circuit Judges.
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. Harrington based on
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
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 further 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 Department of Veterans affairs Accountability and Whistleblower Protection Act of 2017, which established
Soon after
In its review, the MSPB determined that VA did not err in removing Mr. Harrington because it found that substantial 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 penalty.
II
We review MSPB decisions for whether they are (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.
On appeal, Mr. Harrington argues that the Board erred in upholding his removal because the Board failed to consider 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
A
Mr. Harrington argues that the Board erred by failing to consider the reasonableness of the penalty of removal.
Under
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 action. 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
Our opinion in Sayers controls and mandates that review 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 warranted the employee‘s removal.” Id.
The Board did not conduct a key portion of the analysis under the proper interpretation of
B
In Sayers, we also held that
Waiver is a discretionary issue. Singleton v. Wulff, 428 U.S. 106, 121 (1976). This court has recognized several reasons for considering issues raised for the first time on appeal: (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
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 because a remand is required in any event for the scope of penalty review issue, which Mr. Harrington has adequately preserved. See supra § III(A).
For these reasons, we hold that the
IV
Because the Department of Veterans Affairs cannot remove Mr. Harrington under
VACATED AND REMANDED
COSTS
No costs.