Lead Opinion
Opinion for the court filed by District Judge PATEL. Dissenting opinion filed by Circuit Judge BRYSON.
Petitioner John Doe appeals the final decision of the Merit Systems Protection Board (“MSPB” or “Board”). Doe v. Dep't of Justice, CH-0752-04-0620-B-1,
BACKGROUND
Doe was initially employed by the FBI in January 1997. Prior to his removal, Doe worked as a Special Agent pilot near an FBI Field Office in Ohio. While Doe was off duty, he had consensual sex with a female member of the FBI’s support staff (“Female # 1”), whom he was dating. Doe and Female # 1 videotaped their sexual encounters, at her suggestion. However, Doe also videotaped his separate consensual sexual encounters at his residence with another female FBI employee (“Female # 2”) as well as with one woman who was not an employee (“Female # 3”).
This aspect of Doe’s private life came to be known by the FBI through the actions of Female # 1. In October 2002, while Doe was out of town, Female # 1 entered his house and found the tapes, each with a videotaped partner’s name labeled on it. She contacted Doe and together, with the assistance of a professional counselor, they worked out the problems the tapes revealed about their relationship. Later, she shared her concerns with, and revealed the existence of the tapes to, counselors in the FBI Employee Assistance Program. From that point rumors spread about Doe and female co-workers at the FBI, which were upsetting to Female # 1 and Female #2.
In March 2003, in response to these rumors, the Office of Professional Responsibility (“OPR”) of the FBI began to investigate. Doe admitted to videotaping the three women, on occasion, without their knowledge or consent. In March 2004, the OPR concluded that Doe’s off-duty behavior, specifically videotaping sexual encounters with women without their consent, was unprofessional conduct and “contrary to the FBI’s suitability requirements.” In discussing whether Doe’s conduct was sanctionable, the OPR decision memorandum stated that Doe’s non-consensual taping activities “may have constituted a violation of criminal law.” Based on these findings, Doe was removed from employment with the FBI on June 9, 2004. At the time of that decision, the deciding official Jody Weiss, then Deputy Assistant Director of OPR, and Doe’s supervisor Gary Klein, Assistant Special Agent in Charge, both believed that Doe’s conduct had violated the Ohio state voyeurism law.
The FBI’s Disciplinary Review Board sustained Weiss’ decision on June 7, 2005. Doe timely appealed the FBI’s removal action to the MSPB. On October 26, 2005, an AJ conducted an evidentiary hearing regarding Doe’s removal. In a March 2006 Initial Decision, the AJ reversed the removal, finding no legal nexus between Doe’s off-duty personal conduct and “the efficiency of the agency’s operation” nor with the performance of Doe’s work duties. In his analysis, the AJ found insufficient evidence that Doe’s conduct violated Ohio state law and, moreover, held
The FBI appealed the Initial Decision to the Board. In an August 14, 2006 decision, the Board held that the agency had established a nexus between Doe’s conduct and the efficiency of the service. Relying on evidence that Doe’s conduct had adversely affected his division’s operations and caused his supervisors to lose trust and confidence in him, the Board reversed the Initial Decision and remanded the case for further adjudication. As to the perceived criminality of Doe’s conduct, the Board “agree[d] with the administrative judge that it does not appear to have violated any laws of the state in which it occurred.” The Board did not analyze what effect the perception that the behavior was criminal had on the decision to remove Doe.
On remand, considering only the propriety of the removal penalty, the AJ mitigated the penalty to a 120-calendar-day (time served) suspension and a directed reassignment at the FBI’s option. The AJ found that Doe’s conduct was not actionable under section 1 of the FBI’s policy, which addresses conduct or relationships involving violations of the law, because it was not criminal. The AJ found that any conduct by Doe that disrupted the FBI’s operation, as a violation of section 2 of the FBI’s policy, was mitigated by the workplace disruptions caused by others. The AJ further held that the FBI officials’ loss of trust and confidence in Doe was “to some extent grounded in the unsubstantiated belief that the appellant’s conducted [SIC] violated a local voyeurism statute.” Comparing the penalty that Doe had received for his “morally wrongful off-duty conduct in his intimate relationships” against a history of similar cases, the AJ concluded that Doe’s removal exceeded the tolerable limits of reasonableness.
The FBI then appealed again to the Board, arguing that the AJ erred in finding Doe’s removal to be a penalty beyond tolerable bounds of reasonableness. The Board held that intervening acts by others did not absolve Doe of culpability for “clearly dishonest” actions and that his seven-year length of service with no disciplinary record and a history of positive performance reviews did not warrant mitigation. Concluding that the FBI had not failed to weigh any relevant mitigation factors and that Doe’s removal was a reasonable penalty, the Board sustained the FBI’s removal action.
This appeal followed. We have jurisdiction pursuant to 5 U.S.C. § 7703(b)(1).
II. DISCUSSION
This appeal centers on whether the removal of Doe and the Board’s decision to sustain that penalty were permissible. See
To sustain the charge of misconduct, the agency must have established by preponderant evidence the existence of a nexus between the employee’s misconduct and the work of the agency, i.e., the agency’s performance of its functions. See Brown v. Dep’t of the Navy,
With respect to the penalty, the Board’s decision must carefully scrutinize the circumstances that led to Doe’s removal, and specifically state its justification for upholding that decision in order for it to be deemed reasonable. See Lachance v. Devall,
In this case, the agency’s own regulations circumscribe the conduct the agency may investigate and consider as grounds for removal of an employee. Accordingly, the Board decisions have focused on whether or not the FBI’s inquiry into Doe’s personal affairs, and attendant disciplinary removal, was in accordance with the FBI’s personal relationships policy. The FBI policy does not condone disciplinary consideration of an employee’s morality in romantic or intimate relationships in the absence of (1) a violation of criminal law, (2) an adverse impact on the agency’s ability to perform its responsibilities, or (3) a violation of an internal regulation. Moreover, the policy affirmatively indicates that OPR may investigate conduct of employees in the context of a personal relationship only if that conduct is criminal, stating:
OPR does not investigate relationships based upon the morality of romantic or intimate relationships, or upon the marital status or gender of the parties, unless they would realistically be subject to prosecution and thus impact upon the accomplishment of the FBI’s mission.
Memorandum from Louis Freeh to All Employees (March 27, 2001).
Respondent proffers two arguments to quiet the dissonance apparent between its policy and its investigation into, and subsequent disciplinary decision based on, Doe’s personal relationships. The first argument is that even if Doe’s conduct was not criminal in the jurisdiction where it took place, it could be elsewhere. We agree with the AJ and the Board that questioning whether Doe’s conduct would have been legal if it had occurred in a different jurisdiction, at least in the circumstances of this case, is immaterial to the review of his removal and need not be considered.
The second argument is that there is a duty of agents to behave honestly at all
We think that the Board’s decision cannot be sustained and that a remand is required for two separate reasons. First, the Board has failed to articulate a meaningful standard as to when private dishonesty rises to the level of misconduct that adversely affects the “efficiency of the service.” Using only “clearly dishonest” as a standard inevitably risks arbitrary results, as the question of removal would turn on the Board’s subjective moral compass. Grounding disciplinary decisions in the nebulous field of comparative morality is too easily used as a post hoc justification. The articulation of a meaningful standard is necessary particularly in light of the apparent conflict between the FBI’s policy on investigating personal relationships and its policies requiring their agents to act with “[i]ntegrity and [h]onesty.” Compare Memorandum from Louis Freeh to All Employees (March 27, 2001) with MAOP, Part I, Section 21-11.1.
This court recognizes the difficulty in drawing a line between the types of conduct that can justify investigation, discipline, and the penalty of removal and those that cannot. Indeed, at oral argument neither party was able to define a meaningful standard. This conundrum does not justify the Board’s failure to articulate a meaningful standard. Elsewhere we have acknowledged that misconduct that is private in nature and that does not implicate job performance in any direct and obvious way is often insufficient to justify removal from a civil service position. See Brown v. Dep’t of the Navy,
Without a predetermined standard— e.g., the legality of the conduct — to clarify when the agency may and may not investigate the personal relationships of its employees, it is conceivable that employees could be removed for any number of “clearly dishonest” misrepresentations, from those made to preserve the sanctity of a romantic relationship to cheating in a Friday night poker game. The danger here is twofold; federal employees are not on notice as to what off-duty behavior is subject to investigation and the government could use this overly broad standard to legitimize removals made for personal or political reasons. A clear articulation of a standard is therefore essential to the government’s ability to reasonably and legitimately remove an agent for off-duty conduct relating to personal relationships. See, e.g., Doe v. Hampton,
To allow the Board decision to stand would be to recognize a presumed or per se nexus between the conduct and the efficiency of the service. We cannot endorse such an interpretation here, as we agree with the Board that the required nexus is not one that can be presumed based on Doe’s conduct- “speaking for itself.” See, e.g., Allred v. Dep’t of Health & Human Servs.,
Secondly, we think that the Board has failed to address the fact that the FBI’s decisions to sustain the charge and to impose the penalty of removal were influenced at least in part by the assumed criminality of the behavior. It remains unclear to this court whether the deciding officials at the FBI interpreted its policy to require a criminal finding, such that they could only investigate Doe if his surreptitious videotaping of his sexual liaisons was criminal. The record indicates that the deciding officials at OPR as well as Doe’s own supervisors were under the impression that Doe’s conduct violated state voyeurism laws, and was reasonably subject to criminal prosecution. On appeal, the AJ held that Doe’s conduct likely did not violate the Ohio state voyeurism law,
Yet, while the Board agreed with the AJ’s conclusion that Doe’s conduct was not criminal, it failed to examine what role that impression played in the initial decision by the agency to remove Doe based on “clearly dishonest” conduct proscribed by the FBI policy. Because the Board sustained the agency’s decision without regard to the violation of law issue, it did not consider whether the FBI would have disciplined Doe absent assumed criminality.
The dissent suggests that it is irrelevant that in imposing discipline the FBI may have been improperly influenced by the assumed criminality of petitioner’s conduct, relying on cases holding that the Board reviews the agency’s decision de novo. The dissent correctly points out that, in the Board context, agency fact finding is subject to de novo review by the Board. Thus, in the cases relied on by the dissent, the Board (or arbitrator) was required to determine de novo whether the agency acted in bad faith (Fucik v. United States,
None of those cases involved a situation where the agency had discretion to impose or not to impose discipline, and the agency had imposed discipline under a mistaken view of the applicable law. As we concluded in Fucik, “we believe an agency does have a certain amount of discretion in choosing between two courses of action, one which would involve adverse action procedures and one which would not.”
In this case there is no factual dispute and, as described above, we leave it to the Board in the first instance to determine whether the FBI would have authority to discipline Doe for his actions. But even if the FBI could impose discipline, the Board must determine whether the agency would have imposed discipline absent the legal error, i.e., whether the FBI would impose discipline now that the FBI’s legal error (the assumed criminality) has been corrected.
The record indicates that Doe’s supervisor and the deciding official lost confidence in Doe’s honesty and integrity, questioned his judgment and ability to perform his
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. In addition to the remand described above (requiring the Board to articulate and apply a meaningful standard), the case is remanded to the Board to consider whether the agency (1) rendered its decision based on a determination that Doe’s conduct satisfied either of those two prongs; and thereafter (2) would have imposed the penalty of removal as an appropriate disciplinary measure, independent of any determination that a violation of criminal law had occurred.
III. CONCLUSION
For the aforementioned reasons, we vacate both the efficiency determination as well as the penalty determination and remand for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED
COSTS
No costs.
Notes
. The FBI requires certain suitability standards which must be met for a person to be hired and employed as an agent. Among these are honesty and integrity, which is described as including,
... behavior that shows the person to be honest, trustworthy, self-disciplined, and respectful of laws and regulations; behaviors that display high standards of ethical conduct and actions that are taken without jeopardizing or compromising these standards, even when there are no ramifications for not doing so. Behaviors involve following agency policy and the letter and spirit of the law and avoiding even the appearance of impropriety. This is related to a person's professionalism, ability to maintain a positive image, ability to serve as a role model and represent the FBI positively to others. It can be contrasted with behavior that involves breaking the law and deviating from agency policy.
See Manual of Administrative Operations and Procedures (“MAOP”), Part I, Section 21-11.1.
. Courts have long recognized that, at a minimum, the government is bound to accord due process and set basic substantive limits on its prerogative to remove its employees. See, e.g., Norton v. Macy,
Dissenting Opinion
dissenting.
In my view, the Board’s finding of a nexus between the charged conduct and the efficiency of the service is not supported by substantial evidence. That should end the case. The majority, however, remands for further proceedings, in particular for the Board to examine (1) whether the FBI’s decision to remove Mr. Doe was affected by its belief that his conduct was criminal, and (2) whether the FBI removed Mr. Doe either because his off-duty conduct impacted the agency’s ability to perform its responsibilities or because the conduct constituted a violation of an internal regulation.
The Board is required to decide whether there is a nexus between the charged misconduct and the efficiency of the service. The Board makes that determination de novo. We review that determination, not the decision of the employing agency. It is therefore irrelevant what motivated the agency to conclude that there was a nexus between Mr. Doe’s conduct and the efficiency of the service. For that reason, the court’s remand is both unnecessary and at odds with the proper roles of the employing agency, the Board, and this court in the review of agency disciplinary actions.
The court’s error may stem from conflating the nexus and penalty issues. This court has held that when the basis for the agency’s penalty is undermined, such as by
Under chapter 75 of title 5, an agency may take certain disciplinary actions against an employee, such as removal or a suspension for more than 14 days, only “for such cause as will promote the efficiency of the service.” 5 U.S.C. §§ 7513(a), 7512. When an agency takes an action covered by section 7512, the employee may appeal to the Merit Systems Protection Board. Id. § 7513(d). The action before the Board is not a typical form of review of agency action, such as the “substantial evidence” review of agency action under section 10(e) of the Administrative Procedure Act, 5 U.S.C. § 706. Rather, the action before the Board is a de novo proceeding in which the employee is entitled to a full adversary hearing on the record. 5 U.S.C. § 7701(a); Licausi v. Office of Pers. Mgmt.,
The pertinent statute and regulation provide that in such a Board proceeding the employing agency bears the burden of proof by a preponderance of the evidence. 5 U.S.C. § 7701(c)(1)(B); 5 C.F.R. § 1201.56(a)(1)(ii). The employing agency must demonstrate to the satisfaction of the Board both that the charged conduct was committed and that there is a nexus between the charged conduct and the efficiency of the service. “By seeking ‘review,’ an employee puts the agency in the position of a plaintiff bearing the burden of first coming forward with evidence to establish the fact of misconduct, the burden of proof, and the ultimate burden of persuasion, with respect to the basis for the charge or charges.” Jackson,
This court has made clear that the employing agency must prove not only the charged conduct but also the requisite nexus by a preponderance of the evidence. See Brown v. Dep’t of the Navy,
The majority opinion recognizes these general principles, but in the course of selecting a remedy in this case, it abandons them. With respect to the nexus issue, the majority states that the employing agency’s decision was “influenced at least in part by the assumed criminality” of Mr. Doe’s conduct. The majority then concludes that the Board improperly sustained the agency’s decision because “it did not consider whether the FBI would have disciplined Doe absent assumed criminality.” Based on the evidence that the employing agency believed Mr. Doe’s conduct violated Ohio law, the majority remands the case to the Board to consider whether the agency rendered its decision based on a determination that Mr. Doe’s conduct impacted the agency’s ability to perform its responsibilities or that the conduct violated an internal regulation.
As the majority notes, the Board’s role with respect to nexus is to “assess whether the agency had the authority to impose discipline” for the employee’s behavior. That determination must be made de novo based on evidence before the Board. The question whether the employing agency may have been influenced in its judgment as to nexus by its belief that Mr. Doe’s conduct was criminal is irrelevant to the Board’s decision on the nexus issue; the Board’s task is not to review the agency’s analysis of the nexus issue, but to determine whether the agency has proved nexus based on the evidence presented to the Board. The Board found that the nexus requirement was satisfied in this case, even though it clearly understood that the conduct in question was not criminal. If the Board had been laboring under the misapprehension that Mr. Doe’s conduct was criminal, it would be reasonable to remand this case to the Board for a new determination as to nexus. But the Board was not mistaken on that issue, and thus there is no reason for a remand.
The majority states that it “leave[s] it to the Board in the first instance to determine whether the FBI would have authority to discipline Doe for his actions.” Yet the Board has already answered that question in the affirmative. I would hold that the Board’s ruling in that regard is in error and that the Board’s decision as to nexus should be reversed. Because the agency, in the proceedings before the Board, failed to prove a nexus between the charged misconduct and the “efficiency of the service,” there is no need to ascertain whether the agency’s deciding officials would have found such a nexus if they had
. In some instances, involving egregious misconduct, the proof of nexus is presumed, subject to rebuttal by the employee. See Dominguez v. Dep’t of the Air Force,