Harrington v. Department of Veterans Affairs, No. 19-1882 (Fed. Cir. 2020)
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Harrington, a Bay Pines VA Healthcare System police officer, sent a photograph of a document contained on the secure agency server to a former VA police officer, Hooker, who was no longer employed by VA. VA had provided 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 later, Congress enacted the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017; 38 U.S.C. 714 speeds up removal proceedings, lowers VA’s burden of proof at the Merit Systems Protection Board from a preponderance of the evidence to substantial evidence, and eliminates the MSPB’s authority to mitigate VA’s imposed penalty. The VA brought a removal action under section 714, alleging misconduct by sending the photograph, and issued a decision removing Harrington. The MSPB found that substantial evidence supported the charge of misconduct and did not review the appropriateness of the severity of the penalty.
The Federal Circuit vacated. Section 714 does not apply to proceedings instituted based on conduct occurring before its enactment. The proper interpretation of section 714 requires the MSPB to review the entire decision below, including the choice of penalty.
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