NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

SEAN P. O’HARA,

Petitioner

v.

DEPARTMENT OF HOMELAND 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

______________________ 

SEAN P. O’HARA, Los Angeles, CA, pro se.

PETER ANTHONY GWYNNE, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, for respondent. Also represented by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., KIRK 

T. MANHARDT. 

______________________ 

Before NEWMAN, PLAGER, and HUGHES, Circuit Judges.
2 O'HARA v. DHS

PER CURIAM. 

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 

asserts that the Board erred in affirming 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 Deportation Officer in the Enforcement and Removal 

Operations Directorate of the Department of Homeland 

Security’s Immigration and Customs Enforcement Agency. On February 28, 2012, an employee reported that Mr. 

O’Hara was viewing sexually explicit images on his government computer.

The Department began an investigation into the matter. 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 images, websites, and links, and conducted numerous searches for sexually 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, admitted 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 less than truthful when he denied 
O'HARA v. DHS 3

viewing pornography on his government computer, because he later admitted having viewed them when confronted 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 unauthorizeduse-of-government-computers charge contained seventeen 

specifications, based on different dates that Mr. O’Hara 

downloaded or viewed sexually explicit materials or 

conducted sexually explicit searches.

Mr. O’Hara submitted a sworn oral reply to the proposed removal. Thereafter, on 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 appealed 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 jurisdiction 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) unsupported by 

substantial evidence.

On appeal, Mr. O’Hara asserts that the Board erred in 

affirming the lack of candor charge and removal penalty.

The Board’s affirmance of the lack of candor charge 

was supported by substantial evidence, because the record 

contains “such relevant evidence as a reasonable mind 
4 O'HARA v. DHS

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 misunderstanding is unpersuasive. In defense of his false statement 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 downloading, not viewing. But 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 deleting email 

messages containing “off-color” material, J.A. 81, which 

show that he understood Mr. Lam’s questions were not 

merely about downloading and distributing.

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 images on government computers is 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 government computers, and 

thus Mr. O’Hara knew or should have known that accessing such materials was prohibited. Additionally, the 

Board correctly concluded that it is inherently improbable 

that Mr. O’Hara did not understand that viewing pornography on government computers is prohibited, since he 

was a GS-13 supervisor with over twenty-four years of 

government service. Accordingly, substantial evidence 

supports the Board’s affirmance of the lack of candor 

charge. 

The Board’s affirmance of the removal penalty 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 discipli-
O'HARA v. DHS 5

nary infraction under the factors set forth by Douglas v. 

Veterans Admin., 5 M.S.P.R. 280 (1981). Both of these 

arguments are unpersuasive. As we have explained, 

“[d]isparate treatment is not shown by comparing a 

penalty imposed by an agency with one emanating from a 

settlement agreement.” Dick v. U.S. Postal Serv., 975 

F.2d 869 (Fed. Cir. 1992) (Table). Thus, the Board did not 

act arbitrarily or capriciously in refusing to use lastchance settlement agreements as comparators.

We also do not find that the Board acted arbitrarily or 

capriciously in affirming the Department’s removal penalty. 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.” Kumferman 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, the Department identified Mr. O’Hara’s mitigating factors, including his 24 years of government experience 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 discipline 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 

conduct 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 considerations and determined 

that removal was appropriate. The 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.
6 O'HARA v. DHS

Thus, because the Board’s decision was supported by 

substantial evidence and was not arbitrary or capricious, 

we affirm.

AFFIRMED

No costs.