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, selfdisciplined, 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
2008-3139 14

REVERSED AND REMANDED 

COSTS 

 No costs. 
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 
2008-3139 2 

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 3 

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 4 

 

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 5 

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.