In an unusual case, the U.S. Court of Appeals for the Federal Circuit in a split decision reversed the MSPB and held that an FBI agent should not be fired for secretly taping his sexual encounters with three women, including two coworkers. Doe v. Dept. of Justice, No. 2008-3139 (Fed. Cir. 5/11/09). The majority opinion found that one of the tapings with a coworker was by mutual consent while the other two tapings were done secretly. The MSPB administrative judge reversed the removal, although the appellant admitted to the videotaping, on the grounds that he had not committed a crime in his off-duty conduct and there was no nexus between his off-duty conduct and his ability to do his job.
While finding that there was no apparent criminal violation, the Board reversed the AJ, deciding that the appellant's conduct had adversely affected the workplace and had caused management to lose trust in him. Upon remand the AJ once again found that the removal was unreasonable but mitigated the penalty to a 120-day suspension with a directed reassignment. The case was appealed again to the Board which reinstated the removal after deciding that the appellant had engaged in "clearly dishonest" actions.
Next, the case was appealed to the Federal Circuit which issued a 2-1 split decision in favor of the appellant. The majority opinion was concerned that the FBI had failed to articulate a "predetermined standard" for personal off-duty conduct. Refusing to accept a "presumed or per se nexus between appellant's conduct" and the statutory requirement of promoting the efficiency of the service, the case was remanded to the Board to determine a "meaningful standard" for private noncriminal misconduct and to "apply that standard to the facts of this case." The majority opinion stated that "In the absence of a violation of criminal law, the FBI is permitted to discipline an employee for off-duty personal conduct only if the conduct impacts the agency's ability to perform its responsibilities or if the conduct constitutes a violation of an internal regulation." The court also instructed the Board to revisit the penalty which was erroneously based on an unproven violation of state criminal law. The minority opinion would have reinstated the appellant, finding no nexus in his dismissal.
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