The Department of Justice (DOJ) found out that Mr. John Doe, a special agent in the DEA (Drug Enforcement Administration) had used his government cell phone to take nude pictures of a minor. Based on a charge of “conduct unbecoming” the agency fired Mr. Doe in that his “conduct was inconsistent with the behavior expected of a sworn Federal Law Enforcement Officer.” (Doe v. Department of Justice U.S.C.A.F.C. No. 2024-2266 (nonprecedential) March 6, 2026) (Opinion p 2)
The Merit Systems Protection Board sustained his removal and Mr. Doe took his case to the appeals court. There Doe argued that the charge against him required the agency to prove that he had “lascivious intent”—an element of child pornography in certain criminal laws—and since it did not so prove that the agency failed to prove every element of the charge against him. (P. 3) Doe admitted that he took the pictures. Further, the evidence was “overwhelming that they were inappropriate.” (P. 4)
The court simply did not buy Doe’s argument: “The flaw in [Doe’s] argument is that his removal was based on the charge of ‘conduct unbecoming a DEA Special Agent,’ not criminal possession of child pornography.” (P. 3). So said the MSPB and now so says the appeals court. As the Board opined the question is “whether [Doe] engaged in conduct unbecoming…” (p. 3) In fact Doe conceded in his brief to the court that he was charged with conduct unbecoming and not with the commission of a crime. Therefore the agency only needed to prove that Doe took the inappropriate photos and did so with his agency-issued phone. End of discussion.
This case demonstrates an important point for agency practitioners in fashioning charges in adverse actions. If the charge had been fashioned as committing a particular crime, then the elements of the crime would have to be proved to make the charge stick. Instead of “possession of criminal pornography” the charge should be “conduct unbecoming” especially in this case where the employee was a law enforcement officer. Criminal charges are for a different forum. Instead of, say “assault and battery” the charge should be “causing a disruption to the workplace,” if those assaults were against coworkers. And so on.
