 United States Court of Appeals for the Federal Circuit

                                     2008-3139


                                    JOHN DOE,

                                                    Petitioner,

                                          v.

                            DEPARTMENT OF JUSTICE,

                                                    Respondent.


        Richard L. Swick, Swick & Shapiro, P.C., of Washington, DC, argued for
petitioner.

       Sean B. McNamara, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent. With
him on the brief were Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy
Director.

Appealed from: Merit Systems Protection Board
 United States Court of Appeals for the Federal Circuit
                                       2008-3139


                                       JOHN DOE,

                                                              Petitioner,
                                            v.

                             DEPARTMENT OF JUSTICE,

                                                              Respondent.

   Petition for review of the Merit Systems Protection Board in CH0752040620-B-1.
                             __________________________

                               DECIDED: May 11, 2009
                            __________________________

Before BRYSON, DYK, Circuit Judges, and PATEL, District Judge. *
Opinion for the court filed by District Judge PATEL. Dissenting opinion filed by Circuit
Judge BRYSON.

PATEL, District Judge.


      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 (M.S.P.B.

Dec. 4, 2007). Doe was removed from his position as a Special Agent by the Federal

Bureau of Investigation (“FBI” or “agency”) based on a charge of “unprofessional

conduct.” Following a dismissal of Doe’s internal agency appeal, Doe sought review

before the Board. Two Initial Decisions by an MSPB Administrative Judge (“AJ”) and


      *
              The Honorable Marilyn Hall Patel, District Judge, United States District
Court for the Northern District of California, sitting by designation.
petitions for review by the FBI followed, and the Board twice sustained Doe’s removal.

Before this court, Doe contends that the FBI failed to establish a sufficient nexus

between Doe’s charged off-duty misconduct and his FBI employment, i.e., the efficiency

of the service, and that the penalty of removal was unjustified. For the reasons set forth

below, we vacate the Board’s final decision and remand with instructions.

                                        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




2008-3139                                   2
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 that the FBI’s policy

regarding the intimate relationships of its employees did not support extending the

review of the legality of Doe’s conduct in jurisdictions other than the state of Ohio. The

AJ found no evidence that Doe ever discussed his videotaping activity with anyone

other than Female #1, prior to the April 2003 investigation, nor that Doe had ever shown

the tapes to any other person, including Female #1. The AJ held that Doe was neither

responsible for the rumors that circulated at the Field Office, nor for any disruption that




2008-3139                                   3
resulted from those rumors. The FBI was ordered to retroactively restore Doe effective

June 9, 2004, and transfer back pay, with interest. In accordance with the interim relief

provided by the AJ’s order, Doe was reinstated and reassigned to a different FBI

location in Omaha, Nebraska.

      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




2008-3139                                  4
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 5 U.S.C. § 7703(c) (Board decisions are

affirmed unless they are found to be “arbitrary, capricious, and abuse of discretion, or

otherwise not in accordance with the law . . . or unsupported by substantial evidence.”);

Modrowski v. Dep’t of Veterans Affairs, 252 F.3d 1344, 1353 (Fed. Cir. 2001) (the Board

ascertains the reasonableness of an agency’s chosen penalty).

       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, 229 F.3d 1356, 1358 (Fed. Cir. 2000) (citing Mings v. Dep't of

Justice, 813 F.2d 384, 389-90 (Fed. Cir. 1987)). The agency has the burden of proof to




2008-3139                                    5
establish that the employee’s discipline will “promote the efficiency of the service.” 5

U.S.C. § 7513(a).

       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, 178 F.3d 1246, 1258 (Fed. Cir. 1999) (“The Board must . . . itself precisely

articulate the basis for upholding the agency’s action. The active process inherent in

the precise articulation of any justification as a matter of course requires ‘careful’

scrutiny of the circumstances: thus, the need for, and legitimacy of, the Board’s exercise

of its balancing authority with aplomb.”). If proper justification does not reveal itself

upon careful scrutiny, the agency’s penalty cannot be sustained. Id.

       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.


2008-3139                                     6
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

times, and a potential breach of this duty warrants investigation, regardless of whether

he employee’s underlying conduct was criminal. 1 Although the FBI suitability standards

referred to by respondent do not include explicit guidance on whether an agent must

behave honestly in all aspects of an agent’s life in order to remain employed, the FBI

Employee Handbook states that high standards of conduct must be maintained “not

      1
             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.


2008-3139                                   7
only when they are engaged in their official duties but while off duty.” See also Ludlum

v. Dep’t of Justice, 87 M.S.P.R. 56, ¶ 29 (2000), aff’d, 278 F.3d 1280 (Fed. Cir. 2002)

(the FBI has a right to hold its special agents to a high standard of conduct). It was this

theory that the Board adopted in its December 4, 2007 decision when it sustained the

FBI’s removal action. See Doe v. Dep’t of Justice, CH-0752-04-0620-B-1 (holding that

“clearly dishonest” conduct is sufficient to trigger investigation and ultimately justify a

decision to remove a special agent).

       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




2008-3139                                   8
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, 229 F.3d 1356, 1360 (Fed. Cir. 2000); Bonet v. U.S. Postal Serv., 661 F.2d 1071,

1078 (5th Cir. 1981) (it is insufficient for an agency to rely on internal regulations that

proscribe in general certain employee conduct, e.g., “immoral” or “disgraceful,” as proof

of the required nexus between off-duty dishonesty/immorality and the efficiency of the

service).

       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,

566 F.2d 265, 272 n.20, 273 (D.C. Cir. 1977) (particularized requirements for removal

serve to “minimize unjustified governmental intrusions into the private activities of

federal employees” and have become a “leitmotif throughout federal personnel

administration” to delimit employment concerns). 2



       2
             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, 417 F.2d 1161, 1164 (D.C. Cir. 1969) (“The Due


2008-3139                                   9
       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., 786 F.2d 1128, 1130 (Fed. Cir. 1986) (a presumption

of the nexus arises when the misconduct is so egregious that it “speaks for itself,” which

“places an extraordinary burden on an employee, for it forces him to prove the negative

proposition that his retention would not adversely affect the efficiency of the service”)

(quoting Crofoot v. U.S. Gov’t Printing Office, 761 F.2d 661, 664 (Fed. Cir. 1985)). The

case is remanded so that the Board may articulate a meaningful standard as to when

private misconduct that is not criminal rises to the level of misconduct that adversely

affects the efficiency of the service, and apply that standard to the facts of this case.

       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,



Process Clause may also cut deeper into the government's discretion where a dismissal
involves an intrusion upon that ill-defined area of privacy which is increasingly if
indistinctly recognized as a foundation of several specific constitutional protections.”).


2008-3139                                    10
because Doe had not shown the videotapes to any other person and the females who

had been taped waived their right to privacy with respect to Doe. See State v. Frost,

634 N.E.2d 272, 272 (Ohio Ct. App. 1994) (holding no violation of Ohio state voyeurism

statute when the privacy interest to be protected had been waived by the females who

“probably expected to be observed”).

          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, 655 F.2d 1089 (Cl. Ct. 1981)); whether the employee had

engaged in sexual harassment (Jackson v. Veterans Admin., 768 F.2d 1325 (Fed. Cir.

1985)); whether the employee was disabled (Licausi v. Office of Pers. Mgmt., 350 F.3d

1359 (Fed. Cir. 2003)).        So too, the Board must determine whether the agency

exceeded its authority in determining that the employee’s action would adversely affect

the efficiency of the service. Brook v. Corrado, 999 F.2d 523, 526 (Fed. Cir. 1993).




2008-3139                                     11
      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.” 655

F.2d at 1097.     Under such circumstances the Board’s task is not to make the

discretionary decision as to whether discipline is desirable but to determine the facts;

assess whether the agency had the authority to impose discipline; and determine

whether discipline would have been imposed absent the legal error. As the dissent

concedes, in the penalty area the Board must conduct just such an inquiry before

sustaining the agency’s penalty where the Board sets aside some of the charges on

which the penalty is based. Dissent at 2. There is no reason to apply a different

approach to the basic question of discipline.

      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 duties, and found Doe’s misconduct serious because they believed it

violated Ohio state law. Because it seems probable that Doe was disciplined at least in




2008-3139                                  12
part because the deciding official mistakenly believed that his misconduct was in

violation of the law, it is necessary to know what conclusion the decision makers would

have reached, and what penalty they would have imposed, if the possibility that the

conduct was criminal was removed from consideration. See Hayes, 727 F.2d at 1539

(“it is not our duty to find nexus but rather to decide . . . whether the [MSPB] affirmance

of the agency conclusion on the nexus issue meets the statutory criteria for our

affirmance.”); see also Lachance v. Devall, 178 F.3d 1246 (Fed. Cir. 1999) (where there

are several charges leading to a penalty, and not all the charges are sustained, it is

necessary to consider what penalty would have been appropriate in light of the dropped

charges).

       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.




2008-3139                                   13
                 REVERSED AND REMANDED

                        COSTS

     No costs.




2008-3139                 14
 United States Court of Appeals for the Federal Circuit


                                       2008-3139

                                       JOHN DOE,

                                                 Petitioner,

                                            v.

                              DEPARTMENT OF JUSTICE,

                                                 Respondent.


    Petition for review of the Merit Systems Protection Board in CH0752040620-B-1.


BRYSON, Circuit Judge, 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

the reversal of the most serious charges against the employee, the Board must consider

whether there is evidence that the agency would have selected a lesser penalty if it had

known that those more serious charges could not be considered in the penalty

determination. See Lachance v. Devall, 178 F.3d 1246 (Fed. Cir. 1999). The reason

for that rule is that the Board reviews the penalty selected by the agency under an

abuse of discretion standard. See Beard v. Gen. Servs. Admin., 801 F.2d 1318, 1322

(Fed. Cir. 1986). The nexus inquiry, however, is different.

      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., 350 F.3d 1359, 1364 n.2 (Fed. Cir. 2003) (“On an appeal from such an

adverse agency action, the Board reviews de novo whether the agency’s decision was

justified.”); Brook v. Corrado, 999 F.2d 523, 528 (Fed. Cir. 1993) (same); Jackson v.




2008-3139                                2
Veterans Admin., 768 F.2d 1325, 1329 (Fed. Cir. 1985) (same); Fucik v. United States,

655 F.2d 1089, 1097 (Ct. Cl. 1981) (“It is the board’s obligation to consider the cases

before it de novo without regard to any decision by the agencies that have gone before

it.”).

         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, 768 F.2d at 1329.

         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, 229 F.3d 1356, 1363 (Fed. Cir. 2000) (“The task of the

Board is to decide whether the agency met the burden of proving a nexus by a

preponderance of the evidence.”); Corrado, 999 F.2d at 527 (“[T]he Government

showed by a preponderance of the evidence the connection between Mr. Corrado’s

misconduct and his removal to promote NASA’s efficiency.”); Brown v. Dep’t of Transp.,

735 F.2d 543, 548 (Fed. Cir. 1984) (“This ‘nexus’ limitation requires the agency to show

by a preponderance of the evidence the necessary connection (i.e., promotion of the

efficiency of the service) between the employee’s offending conduct (off-duty in this




2008-3139                                3
case) and the employee’s job-related responsibilities.”). A finding by the Board that the

nexus element has been proved must be based on evidence presented to the Board;

like the Board’s finding as to whether the misconduct has been proved, the Board’s

finding on nexus is not based on whether sufficient evidence was available to, or

considered by, the employing agency at the time of the adverse agency action. 1 In the

event the Board finds that the agency has proved the charged misconduct and

established a nexus between the misconduct and the efficiency of the service, this court

reviews the Board’s findings under the substantial evidence standard. 5 U.S.C. § 7703.

       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.



       1
               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, 803 F.2d 680, 682 (Fed. Cir. 1986) (“A nexus between the conduct and the
efficiency of the service may be established by a preponderance of specific evidence or
by a rebuttable presumption where the conduct is so egregious that it ‘speaks for
itself.’”); Graybill v. U.S. Postal Serv., 782 F.2d 1567 (Fed. Cir. 1986). It is undisputed
that this case does not involve egregious misconduct that would trigger the presumption
of nexus; in this case, therefore, the agency bore the burden of proving nexus before
the Board by a preponderance of the evidence.


2008-3139                                 4
      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 known that the conduct in question was not criminal. I therefore

respectfully dissent from the court’s decision to remand the case to the Board for further

proceedings.




2008-3139                               5
