John Doe, a Special Agent with the Drug Enforcement Administration, was removed from his position after the Department of Justice discovered he had taken four nude photographs of a minor on a government-issued cell phone in 2016. Although no criminal charges were ever filed against Doe, the DEA issued a Notice of Proposed Removal in 2018 based on the charge of 'Conduct Unbecoming a DEA Special Agent.' The deciding official sustained the charge, finding by a preponderance of the evidence that Doe's conduct was inconsistent with the behavior expected of a sworn federal law enforcement officer. Doe appealed to the Merit Systems Protection Board, which affirmed the removal, and subsequently appealed to the Federal Circuit.
The Federal Circuit applied the standard of review for appeals from the Merit Systems Protection Board, which limits the court to upholding the Board's decision unless it is arbitrary, capricious, an abuse of discretion, or unsupported by substantial evidence. The court addressed Doe's primary contention that the DEA failed to prove he acted with 'lascivious intent,' an element required for criminal child pornography charges under federal statutes. The court rejected this argument, explaining that Doe's removal was based on the administrative charge of 'conduct unbecoming,' not a criminal offense. The court noted that the Notice of Proposed Removal did not charge Doe with possession or creation of child pornography or acting with lascivious intent. To sustain the conduct unbecoming charge, the agency only needed to prove by a preponderance of the evidence that Doe engaged in the specific conduct alleged: taking inappropriate photos on an agency-issued phone. The court found substantial evidence supported this finding, citing Doe's admission that he took the photos and expert testimony regarding their inappropriateness. The court also rejected Doe's due process argument, concluding that because the agency charged him with conduct unbecoming and proved that specific charge, he received adequate notice and was not deprived of due process.
The decision reinforces that federal agencies can remove employees for conduct unbecoming a federal law enforcement officer without proving the specific intent elements required for criminal statutes. It clarifies that the scope of a conduct unbecoming charge is limited to the specific behavior alleged in the notice, and as long as the agency proves that behavior, the employee cannot argue that the agency failed to prove a criminal element. The removal stands, and the Board's decision is final.
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