[00:00:00] Speaker 00:
The next case is Harrington v. DeRoy, 23-17-22.

[00:00:06] Speaker 00:
Mr. Councilor Fowler, you reserve five minutes.

[00:00:09] Speaker 00:
Your time for rebuttal?

[00:00:11] Speaker 00:
Yes, Your Honor.

[00:00:13] Speaker 00:
Okay.

[00:00:13] Speaker 00:
We'll wait just a little bit here.

[00:00:16] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:00:19] Speaker 03:
My name is Jason Fowler.

[00:00:20] Speaker 03:
I represent Mr. Harrington in this appeal.

[00:00:22] Speaker 03:
There is no dispute at this point that the agency failed to consider the evidence that Mr. Harrington presented below as mitigating.

[00:00:31] Speaker 03:
The agency instead argues that the evidence simply doesn't qualify as mitigating for two reasons which I'll address.

[00:00:39] Speaker 03:
But to the extent the court agrees that the evidence is properly considered as mitigating, that alone is sufficient for remand to the board for reconsideration of the penalty in light of its failure to consider the mitigating circumstances.

[00:00:55] Speaker 01:
And what are those?

[00:00:57] Speaker 01:
What are the mitigating circumstances?

[00:01:00] Speaker 03:
The mitigating evidence that was not considered was, number one, that the police report Mr. Harrington is charged with releasing had in fact been released, had been authorized for release.

[00:01:14] Speaker 01:
But when he went to look into the database,

[00:01:18] Speaker 01:
that was not known.

[00:01:19] Speaker 01:
His friend thought the VA may have been up to no good.

[00:01:25] Speaker 01:
So he was looking to see if, as turned out to be the case, and presumably to Mr. Hooker's disappointment, the VA had in fact given him what it had.

[00:01:38] Speaker 01:
So he was getting more information than

[00:01:44] Speaker 01:
Yes, he was getting new information, namely the identity of the earlier email and the actual report.

[00:01:53] Speaker 03:
Well, I'm not sure that that's right, Your Honor, because it was clear that the evidence that was provided, the police report that was provided to Mr. Hooker in the first instance,

[00:02:06] Speaker 03:
the information, the substance was exactly identical to the photograph that Mr. Harrington provided.

[00:02:11] Speaker 01:
It was clear.

[00:02:11] Speaker 01:
It wasn't clear to Mr. Harrington before he went into the database.

[00:02:16] Speaker 01:
In fact, that's what he was trying to find out.

[00:02:18] Speaker 03:
When Mr. Hooker forwarded him the email that contained the police reports, Mr. Harrington had that police report.

[00:02:23] Speaker 03:
He had a type script.

[00:02:24] Speaker 01:
I'm going to just call it a type script version.

[00:02:26] Speaker 01:
He didn't have the original or even a photograph of the original.

[00:02:30] Speaker 01:
And I thought his email said, I suspect there's information that wasn't put in my TypeScript.

[00:02:38] Speaker 03:
That's right.

[00:02:39] Speaker 03:
That's right.

[00:02:40] Speaker 03:
And the issue was not whether Mr. Harrington was right to say he thought he was permitted to disclose this.

[00:02:50] Speaker 03:
The question is whether the agency has reviewed this evidence in the first instance.

[00:02:55] Speaker 03:
The agency would have been entitled, had it done a proper analysis of the Douglas Factors and Mr. Harrington's evidence, to discount it, to make credibility determinations.

[00:03:05] Speaker 01:
And the evidence, again, is that as it turned out,

[00:03:09] Speaker 01:
what he provided was the same as what had already been provided.

[00:03:14] Speaker 01:
Even though he didn't know that, and indeed he was trying to help Mr. Hooker figure that out.

[00:03:20] Speaker 01:
Do I have the name right, Mr. Hooker?

[00:03:21] Speaker 01:
That's right, Mr. Hooker.

[00:03:22] Speaker 03:
It's that and it's also that he believed he was authorized to provide it because it had already been authorized for release.

[00:03:29] Speaker 03:
and had in fact been released to Mr. Hooker.

[00:03:31] Speaker 00:
So they're related, but they're different.

[00:03:34] Speaker 00:
What exactly did he provide?

[00:03:35] Speaker 00:
Did he pull the information up on the system, on the screen, and then he photographed the screen with the screenshots that he talked about?

[00:03:43] Speaker 00:
That's right.

[00:03:43] Speaker 03:
He took a photograph and emailed it to Mr. Hooker.

[00:03:47] Speaker 03:
It was, as an agency investigator testified in the first removal hearing, the information was identical.

[00:03:54] Speaker 03:
There was nothing in addition to

[00:03:57] Speaker 03:
what had been originally provided that was shared.

[00:04:00] Speaker 00:
It doesn't matter that the information had been provided before on the FOIA request.

[00:04:05] Speaker 00:
It goes to Mr. Henton's... Let me ask you this.

[00:04:08] Speaker 00:
Do other police officers generally have authorization to pull up confidential information and photograph?

[00:04:17] Speaker 03:
I would think not.

[00:04:19] Speaker 03:
The difference here is that Mr. Henton believed it wasn't confidential.

[00:04:22] Speaker 03:
And there's no dispute that it wasn't confidential.

[00:04:25] Speaker 02:
But he was found liable for accessing the VA's law enforcement database

[00:04:32] Speaker 02:
without authorization or legitimate purpose.

[00:04:36] Speaker 02:
What happened here was he was removed because he was deemed to be a security risk because he could no longer be trusted with his access to this law enforcement database.

[00:04:50] Speaker 02:
And so that was the characterization of the seriousness of the offense.

[00:04:55] Speaker 02:
It wasn't an allegation that he had disclosed information above and beyond what was already released through FOIA.

[00:05:07] Speaker 02:
And so when I think about this case, I wonder what if

[00:05:12] Speaker 02:
Mr. Harrington was a bus driver, and then he was arrested for drunk driving, and then he was removed from his bus driver position, and then he would, it wouldn't be a mitigating circumstance that he didn't run anybody over when he was drunk driving.

[00:05:32] Speaker 02:
The fact that he was

[00:05:34] Speaker 02:
engaged in this very dangerous behavior alone is enough for the basis for removal, and the fact that it didn't run anyone over isn't a mitigating circumstance for that.

[00:05:47] Speaker 03:
Well, I'm not sure that the analogy is right on.

[00:05:50] Speaker 03:
Again, this information has already been released.

[00:05:54] Speaker 02:
And again, to be clear, our argument is not that Mr. Harry... The information has already been released, but the nature of the offense was rooting around in the database when

[00:06:04] Speaker 02:
there wasn't a legitimate reason to do that.

[00:06:07] Speaker 02:
And then photographing a file displayed on the screen like a James Bond spy.

[00:06:15] Speaker 02:
Maybe.

[00:06:15] Speaker 03:
I mean, look, our argument is not that Mr. Harrington can't be removed.

[00:06:19] Speaker 03:
That's clear.

[00:06:20] Speaker 03:
We are not saying that it is improper to remove him in light of the mitigating circumstances.

[00:06:25] Speaker 03:
What we are saying is that it is the law that the agency was required to evaluate the evidence that he provided.

[00:06:33] Speaker 03:
As this court has held, if it didn't believe Mr. Harrington, if it thought that Mr. Harrington lacked credibility, if it discounted the mitigating evidence for any other reason, it was required to state that on the record.

[00:06:46] Speaker 00:
What other evidence would you say was not considered?

[00:06:50] Speaker 03:
The agency did not consider that, number one, the police report that he provided had already been released in response to a FOIA request, and that he believed as a result that he was entitled to share it with Mr. Hooker.

[00:07:03] Speaker 03:
Now, again, the agency is entitled to find him not credible, to find that it still is maybe not even mitigating, but instead aggravating in light of all the circumstances, in the same way that the court found in the Vestal case,

[00:07:16] Speaker 03:
But the point is that the law is that the agency is required to consider it in reaching a penalty determination under the Douglas Factors.

[00:07:25] Speaker 00:
You mentioned the Douglas Factors.

[00:07:26] Speaker 00:
Which factor is not considered in your view?

[00:07:30] Speaker 03:
Factor one, which would be the nature and seriousness of the offense, which itself contemplates that the factor can be aggravating or mitigating, depending on whether, for example, the intent is intentional, whether it was inadvertent or technical.

[00:07:45] Speaker 03:
And importantly, in the removal decision, the agency-based removal, the penalty of removal, not only on intent, but on knowing an intentional disclosure, meaning the agency removal decision assumed that he knew what he was doing was wrong, which, again,

[00:08:03] Speaker 03:
There's no dispute that they didn't take it into account, but they took the opposite into account.

[00:08:07] Speaker 03:
They presumed that he did know what he was doing was wrong.

[00:08:11] Speaker 00:
There's something that always stuck in my mind about this case.

[00:08:16] Speaker 00:
Your argument is that Mr. Harrington, that his conduct was mitigated because the information had been released before.

[00:08:26] Speaker 00:
And Mr. Herenton knew that, and he thought he was just releasing information that had been released.

[00:08:32] Speaker 00:
And somehow that's a mitigation factor.

[00:08:35] Speaker 00:
But Mr. Herenton also really suits to me that what he was doing was not legal.

[00:08:45] Speaker 00:
He went back when nobody was around.

[00:08:51] Speaker 00:
He went into the room, turned on the machine.

[00:08:54] Speaker 00:
All those were apps.

[00:08:55] Speaker 00:
He had no permission to be in the room where he was at, access to the system.

[00:09:01] Speaker 03:
When he had access to the system or else he wouldn't have been able to take the photograph.

[00:09:07] Speaker 00:
I'm not arguing that his penalty must be mitigated.

[00:09:14] Speaker 03:
Did you hear me?

[00:09:15] Speaker 03:
Yes, Your Honor.

[00:09:16] Speaker 03:
I think the agency found that he was not entitled to access those records.

[00:09:22] Speaker 03:
That was part of the penalty determination.

[00:09:25] Speaker 03:
What the agency failed to do and what it was required to do was to give Mr. Harrington a fair shake.

[00:09:30] Speaker 03:
to at least address the evidence that he provided and reach a conclusion based on the totality of the evidence.

[00:09:37] Speaker 03:
As it stands, they didn't do it.

[00:09:39] Speaker 03:
Is the agency entitled on remand to decide to remove him?

[00:09:43] Speaker 03:
We hope that it doesn't, but yes, it is, so long as it takes into account all the evidence that was presented to the agency.

[00:09:50] Speaker 03:
And there's no dispute that they did not consider that evidence.

[00:09:52] Speaker 01:
Does a joint appendix that's before us include, I think it does, but I'm going to ask you to locate it for me.

[00:10:03] Speaker 01:
Whatever he told the agency between the proposed removal and the removal decision.

[00:10:11] Speaker 03:
I'm sorry, I missed it.

[00:10:12] Speaker 03:
Between when?

[00:10:13] Speaker 01:
Between the proposal to remove him and the removal.

[00:10:18] Speaker 01:
That is, he's charged with something,

[00:10:21] Speaker 01:
he had an opportunity to come in and say, here's why I'm not guilty.

[00:10:26] Speaker 03:
So there were two removal proceedings, long history here.

[00:10:35] Speaker 03:
But this court reversed his original removal, sent it back for proper evaluation of the penalty and the charges under the Douglas Factors.

[00:10:46] Speaker 03:
The same day he started, they re-initiated removal proceedings.

[00:10:51] Speaker 03:
And so to some extent, the agency had the basis or had the benefit of the record that had happened before, because they were on remand.

[00:11:03] Speaker 03:
I'm looking at the appendix here.

[00:11:06] Speaker 01:
So there were potentially at least two opportunities.

[00:11:14] Speaker 01:
each one between proposal one, removal one, proposal two, removal two?

[00:11:21] Speaker 01:
Did he go and talk to the deciding official or submit something at each of those, or is it entirely based on what he had said between proposal one and removal one?

[00:11:34] Speaker 03:
No, it's so... I do not believe that he specifically filed something after the second notice of removal.

[00:11:42] Speaker 01:
Okay, so the record of his coming and telling the agency, here's why it's not as bad as it looks, is entirely from the first round.

[00:11:53] Speaker 03:
That's not correct, Your Honor, because the pre-hearing and the hearing itself, for example, Mr. Henson testified at the hearing.

[00:12:00] Speaker 01:
Now we're in the board.

[00:12:02] Speaker 03:
Yes, Your Honor.

[00:12:04] Speaker 01:
OK, great.

[00:12:04] Speaker 01:
So I'm only interested right now in what he told the decision makers before they made their decision, or the decision maker before he made his.

[00:12:15] Speaker 03:
OK.

[00:12:17] Speaker 03:
I'm out of my time, or I'm into my rebuttal time.

[00:12:20] Speaker 00:
I'll look for that.

[00:12:21] Speaker 00:
Go ahead and answer the question here.

[00:12:23] Speaker 03:
Yeah, let me check on that, Your Honor.

[00:12:24] Speaker 03:
I'm not positive and don't want to mistake the record.

[00:12:27] Speaker 01:
OK, and while you're thinking about it, what I am recalling was when I think I looked at that material.

[00:12:34] Speaker 01:
He didn't say very much about how he thought it was OK for him to go into this system.

[00:12:43] Speaker 01:
And I could be wrong about that, but that's what I was wanting to explore.

[00:12:46] Speaker 03:
I think you're right.

[00:12:49] Speaker 03:
I think you're right, but there was a fair amount of that in And before in the original removal, yeah, okay Mr. Kushner Thank you your honor good morning, excuse me

[00:13:12] Speaker 04:
Before I begin, Judge Toronto, I'd like to answer your question directly.

[00:13:18] Speaker 04:
In the second removal proceeding, Mr. Harrington declined to participate at all.

[00:13:22] Speaker 04:
If you take a look at page 113 of the appendix, that's the deciding official's decision in this case.

[00:13:30] Speaker 04:
The deciding official stated, in reaching this decision and carefully considered all the evidence developed, I note for the record that you did not participate in the oral reply scheduled for you and did not provide a written reply within the designated time frame.

[00:13:45] Speaker 01:
OK.

[00:13:45] Speaker 01:
So now go back to the first removal decision.

[00:13:51] Speaker 01:
What did, after that one was proposed, what did he come in and tell the deciding official?

[00:13:58] Speaker 01:
Where's that in the record?

[00:13:59] Speaker 04:
So if you take a look at the original deciding official's decision, that's at page 1428 of the Joint Appendix.

[00:14:09] Speaker 04:
Again, in paragraph two, it looks like Mr. Harrington did provide some written reply and an oral reply initially.

[00:14:19] Speaker 04:
He then failed to respond to an opportunity for a second oral reply when the deciding official had some additional questions.

[00:14:27] Speaker 04:
It's not entirely clear what he said exactly, but I will note that that first removal proceeding.

[00:14:34] Speaker 01:
I'm sorry.

[00:14:35] Speaker 01:
Is that what follows at page 1445?

[00:14:38] Speaker 01:
Is that a document that he submitted saying, here are the charges?

[00:14:43] Speaker 01:
And then I think a lot of this is his saying, here's why those charges don't hold up.

[00:14:52] Speaker 01:
Is that?

[00:14:54] Speaker 04:
That may be what this is, Your Honor.

[00:14:57] Speaker 04:
But I will note that that first removal proceeding was vacated by this court.

[00:15:04] Speaker 01:
I guess the table of contents of the Joint Appendix describes those pages as response to notice of proposed removal, October 3, 2017.

[00:15:15] Speaker 04:
So it does appear to be Mr. Harrington's response to that initial removal proceeding.

[00:15:20] Speaker 04:
But that initial removal proceeding was vacated by this court.

[00:15:24] Speaker 04:
Mr. Harrington had to be reinstated into his position with the VA.

[00:15:28] Speaker 04:
And then a new removal proceeding had to be initiated.

[00:15:31] Speaker 04:
That second removal proceeding was for slightly different charges.

[00:15:36] Speaker 04:
The board originally sustained only two of the three charges against Mr. Harrington.

[00:15:41] Speaker 04:
So the second removal proceeding was only for

[00:15:45] Speaker 04:
two charges as opposed to the original three.

[00:15:48] Speaker 04:
And we claim that Mr. Harrington would want to participate in that second removal proceeding.

[00:15:55] Speaker 04:
That's the proceeding before the court today.

[00:15:59] Speaker 04:
So if I may address some of the arguments that my friend on the other side has brought up.

[00:16:06] Speaker 04:
The petitioner essentially argues in this case that both the VA and the board failed to consider intentionality when deciding what the appropriate penalty was.

[00:16:16] Speaker 04:
But the record shows that that simply is not true.

[00:16:19] Speaker 04:
The VA on page 42 of the Joint Appendix considered the intentional and deliberate nature of Mr. Harrington's conduct as an aggravating factor

[00:16:29] Speaker 04:
that warrants removal.

[00:16:31] Speaker 04:
And the board administrative judge on page 20 of the Joint Appendix credited testimony by the deciding official finding the conduct at issue to be intentional.

[00:16:45] Speaker 04:
That treatment of intentionality by both the VA and the board is entirely consistent with the way this court has treated intentionality before.

[00:16:54] Speaker 04:
Only a few years ago, in Vestal v. Department of the Treasury, this court explained

[00:17:00] Speaker 04:
that an agency establishes intentionality when it shows that an employee intended to commit the act that the employee committed, even if the employee did not intend for that act to violate an applicable policy or regulation.

[00:17:16] Speaker 04:
And that's exactly what happened here.

[00:17:18] Speaker 04:
There is no dispute that Mr. Harrington.

[00:17:20] Speaker 01:
I'm sorry.

[00:17:22] Speaker 01:
In that circumstance, I intend to commit the act

[00:17:27] Speaker 01:
So that, I think you just said, that's perfectly consistent with, but I thought it was just fine.

[00:17:33] Speaker 01:
And you think the, if it were true, that he thought it was just fine, that that wouldn't be a mitigating circumstance?

[00:17:41] Speaker 04:
It would not go to intentionality, Douglas fact or want.

[00:17:46] Speaker 04:
Intentionality under Douglas Factor 1 means he intended to do what he did.

[00:17:52] Speaker 04:
And again, I'll give you the example of Vestal, Judge Taranto.

[00:17:55] Speaker 04:
In Vestal, we had an IRS employee who sent confidential taxpayer information to her attorney.

[00:18:01] Speaker 01:
Never mind the listing of Douglas Factors, which is just a convenient way of organizing stuff that's relevant.

[00:18:08] Speaker 01:
So is a belief

[00:18:11] Speaker 01:
on the part of the, of the, um, removed employee, not yet removed employee, um, that what he did was fine.

[00:18:21] Speaker 01:
Um, really not a mitigating circumstance.

[00:18:26] Speaker 04:
It's not, Your Honor.

[00:18:28] Speaker 04:
The subjective belief of the employee about what the rules mean does not mitigate his actions.

[00:18:34] Speaker 04:
It doesn't mitigate the actions generally, and it certainly doesn't mitigate the actions.

[00:18:39] Speaker 01:
I guess maybe I'm confused, but I'm sort of befuddled.

[00:18:43] Speaker 01:
I thought, hey, innocent mind might not be a defense, but it sure as heck is mitigating.

[00:18:49] Speaker 04:
Well, it's... Everywhere.

[00:18:51] Speaker 04:
So Your Honor, again, I'll give you the example of Vestal.

[00:18:54] Speaker 04:
The employee in Vestal thought that by sending the taxpayer information to her attorney, she was not violating any rule because it's covered by the attorney-client privilege.

[00:19:03] Speaker 04:
In her mind, she believed what she was doing was perfectly compliant with the rules applicable to her.

[00:19:09] Speaker 01:
And I'm sorry, and we said that's not mitigating, or did we say that's not enough to undo the penalty decision?

[00:19:16] Speaker 04:
I believe in that case the board said that that does not mitigate the decision and Discord affirmed and said

[00:19:22] Speaker 01:
What matters is mitigate the decision is not that's not the correct.

[00:19:27] Speaker 01:
And maybe they said that.

[00:19:28] Speaker 01:
I'm sorry.

[00:19:29] Speaker 04:
I think I misspoke.

[00:19:30] Speaker 04:
The board and Vestal.

[00:19:31] Speaker 01:
It's right at the heart of what I'm getting at.

[00:19:33] Speaker 01:
No, it is.

[00:19:33] Speaker 04:
It is.

[00:19:34] Speaker 04:
You're absolutely right.

[00:19:35] Speaker 04:
I believe the board and Vestal decided that the belief, the subjective belief, that what the employee did did not violate any rule or policy that did not mitigate the penalty that she received.

[00:19:51] Speaker 04:
And this court on appeal affirmed and agreed.

[00:19:54] Speaker 00:
But it may not have mitigated the penalty.

[00:19:57] Speaker 00:
I mean, at the end of the day, maybe the penalty was mitigated.

[00:20:02] Speaker 00:
But are you saying that it's never a factor in the analytical process?

[00:20:09] Speaker 00:
It's not a mitigating factor?

[00:20:13] Speaker 04:
So I wouldn't say it's never a factor, Jadrena.

[00:20:17] Speaker 04:
I think it might depend on the specific rules and policies that the employee is charged with violating.

[00:20:25] Speaker 04:
If there's a rule or policy that talks about sort of a mens rea.

[00:20:30] Speaker 00:
So explain why this is not one of the exceptions that you just noted.

[00:20:34] Speaker 04:
Right.

[00:20:35] Speaker 04:
So in this case, if we look at the particular VA handbook provisions and Bay Pines privacy policy provisions that Mr. Harrington violated, those have no mens rea element.

[00:20:46] Speaker 04:
They don't talk about willfulness.

[00:20:47] Speaker 04:
They don't talk about intentionality.

[00:20:49] Speaker 04:
All they focus on is authority or the lack thereof.

[00:20:53] Speaker 04:
And they say if an employee takes certain actions without the proper authority, that employee violates these rules.

[00:21:01] Speaker 04:
And here, not only did Mr. Harrington lack that authority, but he didn't even try to seek that authority.

[00:21:08] Speaker 04:
There is no dispute here that there was no authority, there was no legitimate purpose for this act.

[00:21:13] Speaker 00:
I'm an employee.

[00:21:14] Speaker 00:
I showed up to work on the first day, and they tell me, Jadrina, here's your entry badge.

[00:21:20] Speaker 00:
You know, go to work in room 201, I go to room 201 and pass security with my entry badge.

[00:21:28] Speaker 00:
Then it turns out that that entry badge is the English issue graph.

[00:21:33] Speaker 00:
And I really did have a 32 entry room.

[00:21:35] Speaker 00:
I really did have a 32 badge.

[00:21:37] Speaker 00:
That's not a mitigating factor.

[00:21:42] Speaker 04:
I would say it would depend on the particular policy that you are violating.

[00:21:48] Speaker 00:
Well, the truth, familiar with what Mr. Harrington was arguing, is that this factor was not considered.

[00:21:55] Speaker 00:
Not that the factor was mitigated in itself, and therefore the conclusion is wrong.

[00:22:02] Speaker 00:
He simply said this mitigated factor was not considered at all.

[00:22:06] Speaker 00:
It should have been.

[00:22:07] Speaker 04:
Well, Your Honor, the only mitigating factors that Mr. Harrington seems to talk about here is the outcome of his actions, the fact that the version of the report that he produced to Mr. Hooker ended up containing the same information as what Mr. Hooker already had through the FOIA process.

[00:22:26] Speaker 04:
and his subjective belief about what the rules and policies meant.

[00:22:33] Speaker 04:
And neither one of those, not only are they not mitigating, but neither one of those is relevant to the charges with which Mr. Harrington was charged.

[00:22:44] Speaker 04:
Again, those provisions of the VA handbook and the privacy policy

[00:22:50] Speaker 04:
those focus on authority.

[00:22:52] Speaker 04:
And we have a complete lack of authority here.

[00:22:54] Speaker 04:
It is undisputed that we have a complete lack of authority here.

[00:22:57] Speaker 04:
And the removal was therefore appropriate.

[00:22:59] Speaker 02:
Didn't the board also find that it's strange credulity that Mr. Harrington didn't know that he shouldn't have been, I don't know, accessing this database and taking pictures of information?

[00:23:14] Speaker 04:
Yes, that's absolutely correct, Your Honor.

[00:23:16] Speaker 04:
This record.

[00:23:17] Speaker 01:
Let me just say, it seems to me,

[00:23:20] Speaker 01:
And that is a point that directly addresses what we've just been talking about.

[00:23:25] Speaker 01:
That's a different kind of intentionality found by the board than the intent to walk into the room and turn on the computer.

[00:23:35] Speaker 04:
Yes, and I would agree with that.

[00:23:37] Speaker 04:
The record is replete with evidence of trainings that Mr. Harrington underwent over the years, again and again, about the very provisions that he violated in this case.

[00:23:48] Speaker 04:
So Judge Chen, you're absolutely right.

[00:23:50] Speaker 04:
The board found that

[00:23:51] Speaker 04:
any argument that he was unaware of these rules or that he didn't understand that surreptitiously going into a restricted law enforcement database and taking a snapshot and then sending it to someone outside the agency.

[00:24:04] Speaker 04:
The idea that he didn't know all of that violated rules and policies, it strains credulity and we certainly agree with that.

[00:24:12] Speaker 01:
By the way, what is the specific evidence for the surreptitious characterization?

[00:24:18] Speaker 04:
I would say it's

[00:24:21] Speaker 04:
his failure to seek authority from anyone about accessing the database, about accessing a police report.

[00:24:33] Speaker 01:
You were using the characterization, including right from the beginning of your brief, to paint a picture of a mental state.

[00:24:43] Speaker 01:
And I guess I went looking maybe not hard enough for the evidence that somebody said,

[00:24:51] Speaker 01:
You know, he specifically waited until 85% of the employees in the relevant area were out for lunch.

[00:24:58] Speaker 01:
And there's a picture of him walking carefully and looking like this, and before he's opening the door, checking that nobody sees him, and then he closes the block.

[00:25:09] Speaker 01:
Something about surreptitiousness, and I didn't find it.

[00:25:13] Speaker 04:
And I don't think anything quite like that is anywhere in the record.

[00:25:17] Speaker 04:
I would say that that characterization is not a characterization of Mr. Harrington's state of mind.

[00:25:22] Speaker 04:
It is a characterization of his actions and his failure to take the actions that were required.

[00:25:30] Speaker 04:
So we know, for instance, that Mr. Harrington had no connection to the police report that was issued in 2016 in connection with that disturbance.

[00:25:40] Speaker 01:
This is not a big point in my mind.

[00:25:43] Speaker 01:
You used the surreptitious characterization early in the brief to paint a picture.

[00:25:52] Speaker 01:
wasn't sure that that was warranted.

[00:25:54] Speaker 04:
Understood, Your Honor.

[00:25:56] Speaker 04:
And if you don't think it's warranted, you can certainly feel free to disregard it.

[00:26:00] Speaker 04:
The only reason I used it is because we know Mr. Harrington had no legitimate purpose in doing any of the things he did.

[00:26:07] Speaker 04:
And we know he did them anyway without seeking authority from anyone.

[00:26:11] Speaker 04:
In my mind, that shows that the conduct was surreptitious.

[00:26:14] Speaker 04:
But if you disagree, then certainly feel free to disregard it.

[00:26:22] Speaker 04:
There's no further questions.

[00:26:24] Speaker 04:
We ask the court to affirm.

[00:26:25] Speaker 03:
We thank you for your argument.

[00:26:28] Speaker 03:
Thank you.

[00:26:28] Speaker 03:
A few points, Sean.

[00:26:29] Speaker 03:
Just to address your comment, Judge Chen, the comment about strained credulity related to an argument that is not raised on appeal, it also is by the board itself.

[00:26:42] Speaker 03:
If the board found that, by the full board, if the board found that an argument had not been addressed by the agency, it should have remanded.

[00:26:51] Speaker 03:
to the agency for consideration of the evidence.

[00:26:54] Speaker 03:
But you're referring to Appendix 4.

[00:26:57] Speaker 03:
Again, the board made an entirely different analysis of the argument that is on appeal, which spans Appendix 4 to 5, regarding the argument that the appellant's photograph and releasing the information was not improper because it had been previously released under the Freedom of Information Act.

[00:27:13] Speaker 03:
So, it's really related to a different argument.

[00:27:18] Speaker 03:
To address your point, Judge Toronto, lack of knowing or intent is clearly a mitigating circumstance.

[00:27:26] Speaker 03:
It's baked into the Douglas Factors.

[00:27:29] Speaker 03:
Douglas Factor 1 is not about intentionality.

[00:27:31] Speaker 03:
It uses intentionality as an example.

[00:27:33] Speaker 03:
The Douglas Factor 1 addresses the nature and circumstances of the offense.

[00:27:37] Speaker 03:
And the MSPB itself has found on a number of occasions that it is very relevant to intent, or relevant to the penalty.

[00:27:48] Speaker 03:
In the Bolts case that we cited, it says the absence of intent by the appellant is an important mitigating factor.

[00:27:54] Speaker 03:
Because your conduct was unintentional, the charge is less serious than charged.

[00:27:59] Speaker 03:
The Bartram case, which held that because the sustained misconduct was unintentional, less serious than charge, the mitigation was warranted.

[00:28:06] Speaker 01:
So clearly- And there you think the word unintentional is being used to describe something about the understanding of wrongfulness, not the nature of the act.

[00:28:19] Speaker 03:
Because in some sense, the act is intentional.

[00:28:21] Speaker 03:
The person intends to do the thing that they did.

[00:28:24] Speaker 01:
What about the other thing that you told me you were going to get back to me?

[00:28:28] Speaker 03:
I think you are, Your Honor.

[00:28:31] Speaker 03:
Mr. Harrington did not submit a reply or participate in the reply.

[00:28:36] Speaker 03:
and an oral reply to the notice of proposed removal.

[00:28:41] Speaker 03:
But I don't think you can ignore that, again, this happened the day he came back following a remand from this court requiring him to be reinstated.

[00:28:50] Speaker 01:
Is the October 2017, the material at A1445, October 3rd, the response, was that part of the record of the second removal proceeding?

[00:29:09] Speaker 03:
I don't know.

[00:29:10] Speaker 03:
Certainly it was before the agency.

[00:29:12] Speaker 03:
And the agency... That's what I mean.

[00:29:15] Speaker 01:
I mean, the second rule we're seeing before the agency.

[00:29:18] Speaker 01:
And the deciding official says, I've considered everything in the record, but I don't know what he thought the record was.

[00:29:23] Speaker 03:
I don't know.

[00:29:25] Speaker 01:
Let's assume for a minute that this material was before.

[00:29:29] Speaker 01:
What in this material, in this material, where did Mr. Harrington say, and I thought what I was doing I had authority to do?

[00:29:41] Speaker 01:
At 1445?

[00:29:41] Speaker 01:
Yes.

[00:29:42] Speaker 01:
This is by the ten page document.

[00:29:57] Speaker 03:
1455, Your Honor.

[00:30:01] Speaker 03:
Where is that?

[00:30:02] Speaker 03:
I mean, I know where it is.

[00:30:03] Speaker 03:
In 1455, paragraph 5, he says, the information I took, the information I took a picture of was already authorized for release, and now the administration is trying to terminate me for furnishing it.

[00:30:16] Speaker 01:
It's more about the consequences than it is about what he understood at the time.

[00:30:20] Speaker 03:
It's granted, Your Honor, but Mr. Harrington is proceeding per se.

[00:30:23] Speaker 03:
I mean, I think you can tell from the

[00:30:26] Speaker 03:
from his submissions to the board that he wasn't aware.

[00:30:33] Speaker 01:
And do you know, did the deciding official have Mr. Hooker's email that prompted Mr. Harrington to go seek this information?

[00:30:43] Speaker 01:
Or did that come in only in the board proceeding?

[00:30:47] Speaker 03:
I'm sorry, did the deciding official have which email?

[00:30:50] Speaker 01:
Didn't Mr. Hooker send his friend an email saying, I'm really suspicious about what they gave me.

[00:30:57] Speaker 01:
Can you go find the original so I can see if they're hiding something from me?

[00:31:03] Speaker 03:
I believe it was, Your Honor, or else I'm not sure how it made it into the record.

[00:31:08] Speaker 03:
It could have come in in the board proceeding.

[00:31:10] Speaker 03:
The board proceeding.

[00:31:11] Speaker 03:
I don't know, Your Honor.

[00:31:12] Speaker 03:
These records are a little bit difficult to make heads or tails of sometimes.

[00:31:17] Speaker 00:
Okay, we have your e-mails.

[00:31:21] Speaker 00:
Thank you.