N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________

SEAN P. O ’ HARA, Petitioner

v.

DEPARTMENT OF HOMELA ND SECURITY, Respondent

______________________

2015

- 3044

______________________ Petition for review of the Merit Systems Protection Board in No. SF

- 0752

- 13

- 4800 -I- 1.

______________________

Decided: April 24, 2015

______________________

S EAN P. O’H ARA , Los Angeles, CA, pro se.

P ETER A NTHONY G WYNNE , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represen ted by J OYCE R. B R ANDA , R OBERT E. K IRSCHMAN , J R ., K IRK T. M ANHARDT

.

______________________

Before N EWMAN , P LAGER , and H UGHES , Circuit Judges.O ' HARA v. DHS 2

P ER C URIAM

. Sean P. O’Hara appeals the Merit Systems Protection Board’s final decision affirming his removal for lack of candor and misuse of government property. Mr. O’Hara
assert s that the Board erred in affirm ing the lack of candor charge and removal penalty . Because the Board’s decision is supported by substantial evidence and is not arbitrary or capricious , we affirm.

I
Mr. O’Hara was employed as a Supervisory Detention and De portation Officer in the Enforcement and Removal Operations Directorate of the Department of Homeland Security ’s Immigration and Customs Enforcement Age ncy. On Feb r uary 28, 2012, an employee reported that Mr. O’Hara was viewing sexually explicit images on his go vernment computer. The Department began an investigation into the ma tter. It conducted a forensic analysis of the government computers used by Mr. O’Hara, which revealed that over a four

- month period he had accessed over 500 sexually explicit image s, websites, and links, and conducted n umerous searches for sexual ly explicit materials. During the investigation, Mr. O’Hara was interviewed, under oath, and asked several questions about the allegations that he viewed pornographic materials. He, at first, denied that he deliberately viewed such images, but then

, after being shown the images discovered during the forensic analysis, admit ted that he had accessed them.
On April 12, 2013, the Department notified Mr. O’Hara of its intention to remove him based on two charges: (1) his lack of candor during his interview; and (2) his unauthorized use of government computers to view sexually explicit images. The lack of candor charge contained two specifications. One asserted that Mr. O’Hara was initially l ess than truthful when he deniedO ' HARA v. DHS 3

viewing pornography on his government computer, b ecause he later admitted having viewed them when co nfronted with the sexually explicit images. The second asserted that Mr. O’Hara was less than truthful when he stated that he did not think it was a violation to access unblocked sexually explicit images on his government computers
, because he had received annual training on what use is authorized on government equipment that explained that such use is prohibited. The unauth orizeduse -of-government- computers charge contained seventeen speci fications, based on different dates that Mr. O’Hara downloaded or viewed sexually explicit materials or conduct ed sexually explicit searches.
Mr. O’Hara submitted a sworn oral reply to the pr oposed removal. Thereafter, o n August 23, 2013, the Department notified Mr. O’Hara that it continued to believe the evidence supported the counts against him and dismissed him from his position. Mr. O’Hara a ppealed to the Board, contesting guilt on all of the charges and the reasonableness of the removal penalty. The Board affirmed. Mr. O’Hara appeals. We have jurisdi ction under 28 U.S.C. § 1295( a) (9)

. II

Our review of the Board’s decision is limited. Under 5 U.S.C. § 7703(c), we must affirm any action, finding, or conclusion that is not: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupp orted by sub stantial evidence.
On appeal, Mr. O’Hara a ssert s that the Board erred in affirming the lack of candor charge and r emoval penalty.

T he Board’s affirmance of the lack of candor charge was supported by substantial evidence , because the record contains “such r elevant evidence as a reasonable mindO ' HARA v. DHS 4

might accept as adequate to support a conclusion.” Wrocklage v. Dep’t of Homeland Sec.

, 769 F.3d 1363, 1366 (Fed. Cir. 2014). As the Board explained, Mr. O’Hara’s assertion that his lack of candor was due to a misund e rstanding i s un persuasive

. In defense of his false stat ement that he had not used government computers to view pornography, Mr. O’Hara asserted that he thought Mr. Lam was asking him about distribution and dow nloading

, not viewing . B ut this is contradicted by the plain language of the question, which did not ask Mr. O’Hara about whether he downloaded or distributed pornographic images, but whether he “viewed” them. J.A. 81

– 82. It is also contradicted by his own answers about deletin g email messages containing “off

- color” material

, J.A. 81, which show that he understood Mr. Lam’s questions were not merely about downloading and distrib uting.
Moreover, substantial evidence supports the Board’s finding that Mr. O’Hara lacked candor when he claimed that he did not think that viewing sexually explicit ima ges on government computers i s prohibited because the sites where they came from were not automatically blocked

. Mr. O’Hara admitted he received mandatory training on the proper use of gov ernment computers , and thus Mr. O’Hara knew or should have known that acces sing such materials was prohibited

. A dditionally , the Board correctly concluded that it is inherently improbable that Mr. O’Hara did not understand that viewing porno graphy on gove rnment computers i s prohibited, since he

was a GS

- 13 supervisor with over twenty

- four years of

govern ment service. Accordingly, substantial evidence supports the Board’s affirmance of the lack of candor charg e.
T he Board’s affirmance of the removal penalt y was not arbitrary or capricious. Mr. O’Hara argues that the Board erred because it rejected some of his submitted comparators involving last

- chance settlement agreements

, and because the removal penalty outweighed the discipl i-O ' HARA v. DHS 5

nary infraction under the factors set forth by Douglas v. Veterans Admin. , 5 M.S.P.R. 280 (1981)

. B oth of these arguments are unpersuasive. As w e have explained

, “[d]isparate treatment is not shown by comparing a penalty imposed by an agency with one emanating fro m a settlement agreement.” Dick v. U.S. P ostal S erv

. , 975 F.2d 869 (Fed. Cir. 1992) (Table). Thus, the Board did not act arbitrarily or capriciously in refusing to use last

chance settlement agreements as compara tors.

We also do not find that the Board acted arbitraril y or capri ciously in affirming the Department’s removal pena lty

. Although a removal penalty is severe, it is within the Board’s discretion so long as the decision “reflects a reasoned concern for the factors appropriate to evaluating a penalty.” Kumferma n v. Dep’t of Navy , 785 F.2d 286, 291

– 92 (Fed. Cir. 1986) (quotation omitted). That is precisely the situation here. When analyzing the Douglas factors, t he Department identified Mr. O’ Hara’s mitigating factors, including his 24 years of government exper ience and good job performance, his emotional issues resulting from his divorce, and the fact that the offense was not high profile. However, the Department also identified several aggravating factors, such as Mr. O’Hara’s prior and fairly recent discipli ne for misuse of a government- issued travel credit card, his position as a law enforcement officer and supervisory official, the deciding official’s loss of confidence in Mr. O’Hara’s ability to perform his job duties, the fact that Mr. O’Hara knew his

con duct was prohibited, the deciding official’s assessment that he was not a good rehabilitation candidate, and the fact that other sanctions were insufficient to deter his or other employees’ future misconduct. The Department carefully weighed these conside rations and determined that removal was appropriate. T he Board’s review of this analysis shows a reasoned concern for applying the Douglas factors appropriately, and accordingly we decline to disturb its affirmance of the removal penalty.O ' HARA v. DHS 6

Thus , because the Board’s decision was supported by substantial evidence and was not arbitrary or capricious, we affirm.

AFFIRMED

No costs.