Charles William Harrington, Jr. v. Department of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHARLES WILLIAM HARRINGTON, JR.,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2023-1722
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-21-0535-I-1.
______________________
Decided: February 28, 2025
______________________
ROBERT J ASON F OWLER, Covington & Burling LLP,
Washington, DC, argued for petitioner. Also represented
by MICHELE P EARCE .
BORISLAV K USHNIR, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent. Also represented by
BRIAN M. B OYNTON , T ARA K. HOGAN, P ATRICIA M.
MCCARTHY .
______________________
Case: 23-1722 Document: 45 Page: 1 Filed: 02/28/2025

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HARRINGTON v. DVA 2
Before REYNA, T ARANTO, and CHEN, Circuit Judges.
REYNA, Circuit Judge.
Charles Harrington, Jr. appeals a final order from the
Merit Systems Protection Board affirming his removal
from the United States Department of Veterans Affairs for
releasing confidential agency information. We affirm.
BACKGROUND
I
Mr. Harrington, a police officer for the U.S. Depart-
ment of Veterans Affairs (“VA”), was removed from his po-
sition on grounds that he disclosed a confidential police
report to another former VA police officer, Carlton Hooker.
The police report concerned a disorderly conduct
charge that the VA brought against Mr. Hooker. Mr.
Hooker sought a copy of the police report under the Free-
dom of Information Act (“FOIA”), 5 U.S.C. § 552. His re-
quest was granted, but the FOIA response did not include
a copy of the police report in its original format. Instead,
the FOIA response provided text lifted from the report, but
not an actual copy of the report itself. Although the FOIA
response noted that “[a]ll information [was] provided in its
entirety” and “[n]o portions of the requested record [were]
withheld either in whole or in part,” Mr. Hooker suspected
that the VA withheld or falsified information in the report.
J.A. 1406. So, he asked Mr. Harrington to obtain and send
him a complete copy of the original report. It is undisputed
that the report was only accessible on a confidential, se-
cured VA intranet server. Later, without authorization,
Mr. Harrington accessed the secured server, located the
one-page report and took a photograph of the report, as dis-
played, with his personal phone, and sent the photograph
to Mr. Hooker.
When the VA learned that Mr. Harrington had sent a
picture of the report to Mr. Hooker, it brought charges
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HARRINGTON v. DVA 3
against him for conduct unbecoming of a federal police of-
ficer and violating VA information security rules and pri-
vacy policy. J.A. 2. It then removed him from his position
based on 38 U.S.C. § 714.
Mr. Harrington appealed his removal to the Merit Sys-
tems Protection Board (“Board”). The Board upheld his re-
moval and Mr. Harrington appealed to this court. This
court vacated and remanded on grounds that Section 714
did not retroactively apply to the conduct underlying the
charges.1 Harrington v. Dep’t of Veterans Affs., 981 F.3d
1356, 1359 (Fed. Cir. 2020). On remand, the VA reinstated
Mr. Harrington, but it removed him again based on the
same charges but under a different statute, 5 U.S.C. Chap-
ter 75.2
Mr. Harrington appealed the second removal to the
Board. J.A. 11. An Administrative Judge (“AJ”) deter-
mined that the second removal was reasonable and lawful.
Mr. Harrington filed a petition for review, which the Board
denied. J.A. 1–10. In its decision, the Board noted that
Mr. Harrington admitted to the conduct underlying the
charges. The Board rejected Mr. Harrington’s argument
that the AJ “failed to give any weight” to mitigating factors.
J.A. 4. The Board found that the AJ considered several
mitigating factors, including Mr. Harrington’s length of
service, his successful performance record, and his lack of
1 38 U.S.C. § 714 governs the removal, demotion, or
suspension of employees at the VA. In Sayers v. Depart-
ment of Veterans Affairs, 954 F.3d 1370, 1381–82 (Fed. Cir.
2020), we ruled that Section 714 cannot be used to sustain
disciplinary actions for conduct occurring before its enact-
ment, as was the case with Mr. Harrington’s conduct here.
2 5 U.S.C. Chapter 75 is titled “Adverse Actions” and
sets forth procedures for agencies to take adverse actions
against federal employees, including removals, suspen-
sions, reduction in grade or pay, and furloughs.
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HARRINGTON v. DVA 4
prior disciplinary actions. The Board also addressed Mr.
Harrington’s argument that his conduct was not improper
because, among other things, the police report was previ-
ously disclosed in the FOIA response. The Board affirmed
the VA’s decision to remove Mr. Harrington.
Mr. Harrington appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A).
S TANDARD OF REVIEW
Our review of Board decisions is limited. 5 U.S.C.
§ 7703(c). We must affirm a Board decision unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been fol-
lowed; or (3) unsupported by substantial evidence.” Id.
The Board abuses its discretion when its “decision is based
on an erroneous interpretation of the law, on factual find-
ings that are not supported by substantial evidence, or rep-
resents an unreasonable judgment in weighing relevant
factors.” Tartaglia v. Dep’t of Veterans Affs., 858 F.3d 1405,
1407–08 (Fed. Cir. 2017) (citation omitted).
D ISCUSSION
The primary issue Mr. Harrington raises on appeal is
whether the Board abused its discretion by failing to con-
sider mitigating circumstances, in particular his subjective
belief that it was appropriate for him to share the report
with Mr. Hooker. Opening Br. 12. Mr. Harrington asserts
that this evidence mitigates the claim that his conduct was
intentional and proves the offense was less serious. He
contends that the Board was not “at liberty to ignore [this]
mitigating evidence.” Opening Br. 15.
I
To determine whether the Board has abused its discre-
tion by failing to consider a mitigating circumstance, we
must first assess whether the identified evidence actually
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HARRINGTON v. DVA 5
constitutes a significant mitigating circumstance.
VanFossen v. Dep’t of Hous. & Urb. Dev., 748 F.2d 1579,
1581 (Fed. Cir. 1984) (“[F]ailure to consider a significant
mitigating circumstance constitutes an abuse of discre-
tion.” (emphasis added)). We hold that Mr. Harrington’s
subjective belief is not such a significant mitigating circum-
stance.
Mr. Harrington argues that his subjective belief that
his conduct was lawful is evidence that his actions were
unintentional, which in turn mitigates the seriousness of
his offense. The government argues that Mr. Harrington’s
subjective belief is not evidence of mitigation because the
charges brought against him involve intentional conduct.
The government contends Vestal v. Department of Treasury
is instructive on this issue. 1 F.4th 1049 (Fed. Cir. 2021);
Appellee Br. 21. We agree.
In Vestal, the Internal Revenue Service removed an
agent for disclosing confidential taxpayer information to an
unauthorized person despite her belief that she was per-
mitted to share the information with the recipient because
he was her attorney. Vestal, 1 F.4th at 1052. We acknowl-
edged that whether a disclosure was intentional is relevant
to the nature and seriousness of the offense (Douglas factor
1). Id. at 1055; see also Douglas v. Veterans Admin., 5
M.S.P.B. 313, 332 (1981) (setting forth twelve factors, the
“Douglas factors,” to assess the reasonableness of a penalty
levied for employee misconduct). But we clarified that the
appellant’s “removal was properly predicated on her inten-
tion to disclose the information to [the recipient] and did
not depend on whether she knew that the disclosure was
wrong.” Vestal, 1 F.4th at 1055.
Here, as in Vestal, Mr. Harrington’s removal was pred-
icated on his intention to disclose the police report and not
on whether he had a reasonable belief that disclosure of the
report was wrong. We cannot say, therefore, that evidence
of Mr. Harrington’s subjective belief amounts to a
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HARRINGTON v. DVA 6
“significant mitigating circumstance” and that the Board’s
purported failure to consider it was an abuse of discretion.
See VanFossen, 748 F.2d at 1581.
II
We also conclude that, contrary to Mr. Harrington’s ar-
gument, the record establishes that the Board did not fail
to consider Mr. Harrington’s mitigation argument. Nota-
bly, the Board considered Mr. Harrington’s concession that
he purposely shared the photograph with Mr. Hooker. The
Board addressed the FOIA disclosure and referenced Mr.
Harrington’s testimony before the AJ. Mr. Harrington tes-
tified that he believed there was “no harm” in disclosing
information that Mr. Hooker already possessed. J.A. 2334
(1:09:24–1:10:55). The Board also addressed several Doug-
las factors to assess the reasonableness of the removal pen-
alty.3 Douglas, 5 M.S.P.B. at 332. This court has long held
that an agency need not consider all potentially mitigating
circumstances. Yeschick v. Dep’t of Transp., Fed. Aviation
Admin., 801 F.2d 383, 385 (Fed. Cir. 1986).
In sum, the Board found that “it strains credulity that
[Mr. Harrington], a Police Officer, did not know that law
enforcement reports should not be photographed and given
to an individual outside of the agency.” J.A. 4. Although
the Board’s final order does not explicitly characterize its
discussion as an assessment of the seriousness of the of-
fense leading to removal, it is clear the Board considered
the circumstances Mr. Harrington now raises. “[W]e do not
require perfect explanations,” and “we will uphold a deci-
sion of less than ideal clarity if the agency’s path may
3 The Douglas factors include, among other things,
the nature and seriousness of the offense, the employee’s
job level and type of employment, the employee’s past dis-
ciplinary record, and the employee’s past work record in-
cluding length of service. Douglas, 5 M.S.P.B. at 332.
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HARRINGTON v. DVA 7
reasonably be discerned.” In re Nuvasive, Inc., 842 F.3d
1376, 1382–83 (Fed. Cir. 2016) (citation omitted). Accord-
ingly, we conclude the Board did not fail to consider this
evidence.
CONCLUSION
We hold that the Board did not abuse its discretion be-
cause its decision is not based on an erroneous interpreta-
tion of the law or unreasonable judgment, and that its
factual findings are supported by substantial evidence.
Tartaglia, 858 F.3d at 1407–08.
We have considered Mr. Harrington’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm the Board’s decision.
AFFIRMED
COSTS
No costs.
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