Court Rules for FBI Agent Who Made Sex Tapes

(CN) - The FBI improperly removed a special agent for videotaping his off-duty sexual encounters with three women, including two FBI employees, the Federal Circuit ruled.

The special agent, referred to as John Doe, videotaped his first sexual liaison with a female FBI employee at the woman's suggestion. He then videotaped separate consensual sexual encounters with another FBI employee and a third woman.

While Doe was out of town, the first woman came to his house and found the tapes. She and Doe went to a counselor to work out the problems the tapes revealed about their relationship. Rumors spread when she later told FBI counselors that she was concerned about the tapes.

The FBI responded to the rumors with an investigation by the Office of Professional Responsibility. Doe admitted to videotaping the three women, occasionally without their consent.

The office concluded that Doe's behavior, specifically his videotaping women without consent, was unprofessional, was contrary to the FBI's "suitability requirements," and may have violated criminal law.

Agency officials removed Doe as a special agent in June 2004, saying they believed his conduct violated an Ohio voyeurism law.

Doe challenged the decision, convincing an administrative judge on the Merit Systems Protection Board that the FBI failed to sufficiently connect his off-duty behavior to his work performance.

The board overturned that decision. Although Doe's conduct didn't appear to violate any laws, the board said, it caused his supervisors to lose trust and confidence in him.

On remand, the administrative judge gave Doe a relatively light punishment and rejected the notion of removal. The board again trumped the judge's decision and ordered Doe removed.

The Washington, D.C.-based federal appeals court said the board's decision "cannot be sustained" for two reasons:

"First, the Board has 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 wrote. "Using only 'clearly dishonest' as a standard inevitably risks arbitrary results, as the question of removal would turn on the Board's subjective moral compass.

"Secondly, we think that the Board has failed to address the fact that the FBI's decisions to sustain the charge and to impose the penalty of removal were influenced at least in part by the assumed criminality of the behavior."

The court vacated the board's final decision and remanded.

Judge Bryson dissented. "In my view, the Board's finding of a nexus between the charged conduct and the efficiency of service is not supported by substantial evidence," Bryson wrote.

"That should end the case."

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