A former FBI special agent who was removed from his position after the agency learned he videotaped his sexual encounters with three women without their consent won an appellate victory today in the U.S. Court of Appeals for the Federal Circuit.
The former agent, identified in court papers as John Doe, alleged his removal was unlawful because the FBI failed to establish a link between his off-duty misconduct and his employment with the agency. The conduct did not violate the voyeurism laws in Ohio, where the agent worked.
The Federal Circuit voted 2-1 to remand the case to the Merit Systems Protection Board, which twice upheld disciplining the agent, for further proceedings. The agent’s lawyer, Richard Swick of D.C.’s Swick & Shapiro, was not immediately available for comment this afternoon.
Circuit Judge Timothy Dyk and U.S. District Judge Marilyn Patel of the Norhern District of California, sitting by designation, found that the merit service board “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.’”
Judge Patel, writing for the majority, said: “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.”
Circuit Judge William Bryson agreed with Patel and Dyk that the evidence in the case didn’t support a link between the agent’s off-duty conduct and the efficiency of the agency’s operation. “That should end the case,” Bryson wrote. Writing in dissent, the judge said the merit board doesn’t need another chance to weigh in.
One of the women told the FBI about the agent’s videotapes, according to court records. In response to rumors, the Office of Professional Responsibility launched an investigation in March 2003. The agent admitted to videotaping three women on occasion without their knowledge or consent. OPR found the conduct “contrary to the FBI’s suitability requirements.”