A recent case decision involves the Naval Criminal Investigative Service (NCIS…. a federal law enforcement agency made somewhat famous by the television series and various spinoffs) and one of its senior agent managers, Crandall Griffin. (Griffin v Department of the Navy (CAFC No. 2018-2072 (nonprecedential) 12/26/19)
As the court explains in its decision. Mr. Griffin was an NCIS criminal investigator in Japan. He was in fact the Assistant Special Agent in Charge and therefore the second highest agency official in Japan when he ran into issues involving his driving. The court’s decision goes to some length to explain that NCIS “protects and defends…against terrorism and foreign intelligence threats, investigates criminal offenses, etc.….” (Opinion p. 2)
Moreover, the court adds, “The Secretary of the Navy relies on all NCIS agents for ‘prompt investigative action’ including ‘effective investigation and resolution of alleged, suspected, or actual criminal offenses, terrorist or intelligence threats, and security compromises.’” (pp. 2-3) All of this means that NCIS agents must “immediately, independently, and capably” respond as required, 24/7. This further means that being able to drive is “essential” to the job and all agents therefore must have a valid driver’s license. (p. 3)
With that backdrop, no wonder the agency did not react well to Mr. Griffin over a two-year period racking up numerous tickets, both on and off base, and on and off duty while in Japan. The Navy revoked Griffin’s driver’s license and as a result he could no longer drive in Japan, or for that matter on any military installation “worldwide.” (p. 4)
This led to a proposed 10-day suspension without pay and demotion from GS-14/4 to GS-13/5. The deciding official sustained the suspension. He mitigated the demotion somewhat but was advised by the Human Resources office that the best he could do was demote Griffin to a 13/7 rather than the 13/5 that had been proposed. The decision cited Griffin’s unbecoming conduct due to “multiple traffic violations, which resulted in the revocation of [his] driving privileges, demonstrated poor judgment and decision-making which are not congruent with expectations of senior NCIS management.” (p. 4)
Griffin appealed to the Merit Systems Protection Board (Board). He did not dispute his conduct, but he argued that there was no proven nexus between that conduct and the efficiency of the service. He also argued the penalty was unreasonable. The Board found that the Navy had in fact proved nexus. It cited Griffin’s “repeated disregard of the law in incurring so many traffic violations in such a short period of time that his license was revoked…[reflecting] poorly on the agency and its law enforcement mission.” (p. 5) Moreover this misconduct caused his bosses “to lose trust and confidence in Griffin as a law enforcement officer, as a supervisor, and as a senior leader at NCIS.” (p. 5)
The Board further did not find the penalty inappropriate or unwarranted and concluded Navy had made its case.
So, Griffin went to the federal appeals court.
The court has sided with the Board finding that nexus was established by substantial evidence. The court points out among other things that Griffin had admitted his misconduct became known both inside and outside NCIS in Japan, including the Japanese police. His misconduct eroded the confidence of his bosses in Griffin and reflected unfavorably on the agency and its law enforcement mission.
As for reasonableness of the penalty the court agreed with Navy and the Board. In response to Griffin’s argument that the Board abused its discretion by ignoring certain evidence, the court did not agree. But the court did note that the Board’s presiding official had used terms such as “preposterous,” “laughable,” and “completely unconvincing” in response to Griffin’s arguments before him. While the court concluded this was not error in itself, it was “unnecessary and bordering on disrespect, and contrary to the role of administrative judges as neutral arbiters.” (p. 10) The court “cautions” the particular AJ as well as other AJs “to refrain from the use of such language in the future.” (p. 11)
Unfortunately for Mr. Griffin the court upheld the Board’s decision, concluding there was substantial evidence to support the Board’s conclusions that there was a nexus and that the penalty against Mr. Griffin was reasonable.