United States Merit Systems Protection Board

Case Report for January 22, 2010

These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.



Appellant: John Doe

Agency: Department of Justice

Decision Number: 2010 MSPB 16

Docket Number: CH-0752-04-0620-M-1

Issuance Date: January 15, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal


This case was before the Board on remand from the decision of the U.S. Court of Appeals for the Federal Circuit, 565 F.3d 1375 (Fed. Cir. 2009), which vacated and remanded the Board’s decision, 107 M.S.P.R. 397 (2007). The Board had held that there was a nexus between the off-duty activity of the appellant (an FBI Special Agent) – videotaping sexual encounters with 3 women, 2 of whom worked as support staff in the appellant’s division, without their consent – and the efficiency of the service, and that the removal penalty was within the bounds of reasonableness. In vacating the Board’s decision, the court held that the 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.” The court stated that the articulation of a meaningful standard was particularly necessary in light of the apparent conflict between the FBI’s policy on investigating personal relationships and its policies requiring their agents to act with integrity and honesty. The court also found that the Board failed to address the fact that the agency’s decisions to sustain the charge of misconduct and to impose the removal penalty were influenced in part by the assumed criminality of the appellant’s conduct. (Both the administrative judge and the Board found that the agency failed to establish a criminal violation.) The court held that in the absence of a violation of criminal law, the agency was permitted to discipline an employee for off-duty personal conduct only if the conduct impacted the agency’s ability to perform its responsibilities or if the conduct constituted a violation of an internal regulation. The court remanded the case 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.”


1. The agency had the authority to investigate and discipline the appellant for the conduct at issue.

a. Under the agency’s “Personal Relationships Policy,” the private life of an FBI employee like the appellant is subject to inquiry when his conduct “may” negatively impact upon the ability of the FBI to perform its responsibilities, violate the law, or violate an internal regulation. The term “may” is construed according to it ordinary, common meaning, referring to a “reasonable possibility.”

b. Here, even assuming that there was no reasonable possibility that the appellant’s conduct violated a law, there was at least a reasonable possibility that the appellant’s actions of videotaping his sexual encounters with 3 women without their consent, 2 of whom worked for the agency, negatively impacted the agency’s ability to perform its responsibilities and violated an internal regulation.

c. Because the appellant’s conduct “may” have negatively impacted the ability of the FBI to perform its responsibilities and violated an internal regulation, the agency was not prohibited under the Personal Relationships Policy from investigating and disciplining the appellant for the unprofessional conduct set forth in the agency’s charge.

2. The case must be remanded for further development of the record with respect to the issue of whether the agency would have disciplined the appellant, and would have decided on the penalty of removal if it decided to discipline him, absent the “legal error” of assuming that his conduct was criminal.

3. The agency has shown by preponderant evidence (more likely true than not) that the appellant’s unprofessional conduct of videotaping his sexual encounters with 2 FBI employees adversely affected the job performance of those employees, as well as the job performance of other employees and the efficiency of the office as a whole.

a. The “nexus” doctrine relates to the requirement of 5 U.S.C.  7513(a) that an agency may take an adverse action against an employee “only for such cause as will promote the efficiency of the service.”

b. Under Kruger v. Department of Justice, 32 M.S.P.R. 71 (1987), an agency may show a nexus between off-duty misconduct and the efficiency of the service by any of 3 means: (1) a rebuttable presumption in certain egregious circumstances; (2) preponderant evidence that the misconduct adversely affects the appellant’s or coworkers’ job performance or the agency’s trust and confidence in the appellant’s job performance; or (3) preponderant evidence that the misconduct interfered with or adversely affected the agency’s mission. Here, neither the first or third of these criteria is applicable.

c. The agency adduced a great deal of evidence that the appellant’s conduct adversely affected the 2 agency employees who were videotaped without their consent. The record also reflects that dealing with the consequences of the appellant’s actions occupied a great deal of time and attention on the part of the agency’s managers, and adversely affected other employees’ job performance and the efficiency of the office as a whole.

Appellant: James Argabright

Agency: Department of Defense

Decision Number: 2010 MSPB 17

Docket Number: AT-4324-09-0507-I-1; AT-4324-09-0508-I-1

Issuance Date: January 21, 2010

Appeal Type: Uniformed Services Employment and Reemployment Rights Act (USERRA)

Board Procedures/Authorities
- Dismissal – With/Without Prejudice

The agency petitioned for review of an initial decision that dismissed these USERRA appeals without prejudice. During a 30-day period during which the appeals were suspended to allow the parties time to pursue additional discovery and settlement, the appellant’s attorney filed a motion to dismiss the appeals without prejudice, the sole basis for which was the attorney’s assertion that the appellant “is suffering from a medical condition that renders him unable to proceed with the case at this time.” The administrative judge granted the motion the next day, issuing an initial decision that dismissed the appeals without prejudice without specifying a deadline for refiling. In its petition for review, the agency argues that the administrative judge abused his discretion in dismissing the appeals without prejudice and requests that the Board sanction the appellant by dismissing the appeals with prejudice, or, in the alternative, remand the appeals for further adjudication under specified conditions.

Holdings: The Board granted the agency’s petition for review, vacated the initial decision, and remanded the appeals for further adjudication:

1. An administrative judge has wide discretion to control the proceedings before him and the dismissal without prejudice to refiling is a procedural option committed to his sound discretion.

2. The administrative judge abused his discretion here by failing to ascertain the nature of the medical condition or how long the condition might be expected to persist, and without offering the agency an adequate opportunity to respond to the appellant’s motion before ruling on it. In addition, the administrative judge abused his discretion in dismissing the appeals without setting a refiling date.

3. The Board denied the agency’s request to dismiss the appeal with prejudice, which would be tantamount to a dismissal for failure to prosecute, the most severe sanction available to the Board, which is reserved for limited circumstances not present here.

4. The Board also denied the agency’s request that the appeals be reassigned to a different administrative judge on remand. Although the dismissal without prejudice constituted an abuse of discretion, this case-related ruling is insufficient to overcome the presumption of honesty and integrity that accompanies the administrative judge.


The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the following cases:

Alford v. Office of Personnel Management, No. 2009-3269 (Jan. 11, 2010) (MSPB Docket No. PH-844E-08-0616-I-1) (affirming the Board’s decision, 111 M.S.P.R. 536 (2009), which affirmed OPM’s denial of an application for disability retirement benefits)

Miller v. Merit Systems Protection Board, No. 2009-3216 (Jan. 11, 2010) (MSPB Docket No. DC-0752-08-0714-I-1) (affirming the Board’s decision, 111 M.S.P.R. 325 (2009), which dismissed the appeal for lack of jurisdiction)

Mitchell v. Merit Systems Protection Board, No. 2009-3221 (Jan. 11, 2010) (MSPB Docket No. AT-0752-08-0769-I-1) (affirming the Board’s decision, 111 M.S.P.R. 346 (2009), which dismissed a petition for review as untimely filed without good cause shown)

Zelenka v. Office of Personnel Management, No. 2009-3065 (Jan. 13, 2010) (MSPB Docket No. PH-831M-07-0316-B-1) (reversing the Board’s decision, 110 M.S.P.R. 205 (2008), which concluded that the petitioner was not entitled to a waiver of her debt to the government arising out of overpayment of disability retirement benefits)

Anthony v. Office of Personnel Management, No. 2009-3257 (Jan. 14, 2010) (MSPB Docket No. DA-844E-09-0064-I-1) (affirming the Board’s decision, which affirmed OPM’s denial of an application for disability retirement)

Fabisiak v. U.S. Postal Service, No. 2009-3271 (Jan. 14, 2010) (MSPB Docket No. SF-0353-09-0224-I-1) (affirming the Board’s dismissal of an appeal, not on the jurisdictional grounds relied upon by the Board, but for the petitioner’s failure to establish the premises of her claim that she was wrongfully denied restoration to light duty employment)

Almaden v. Office of Personnel Management, No. 2009-3300 (Jan. 15, 2010) (MSPB Docket No. SF-0843-09-0468-I-1) (affirming the Board’s decision, which affirmed OPM’s denial of survivor annuity benefits)