John Doe v. Department of Justice

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN DOE,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2024-2266
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0752-19-0105-I-1.
______________________
Decided: March 6, 2026
______________________
L AWRENCE BERGER , Mahon & Berger, Esqs., Glen
Cove, NY, for petitioner.
COLLIN T. MATHIAS , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by T ARA K.
HOGAN, P ATRICIA M. MCCARTHY , YAAKOV R OTH .
______________________
Before REYNA, L INN, and STARK, Circuit Judges.
P ER CURIAM .
Case: 24-2266 Document: 42 Page: 1 Filed: 03/06/2026

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DOE v. DOJ 2
John Doe (“Appellant”) appeals a final order of the
Merit Systems Protection Board (“Board”) sustaining his
removal by the Department of Justice (“DOJ”) from his po-
sition as a Special Agent in the Drug Enforcement Admin-
istration (“DEA”). We affirm.
I
In 2016, the DOJ discovered that Appellant had taken
four nude photographs of a minor on his government-is-
sued cell phone. Although no criminal charges were ever
brought against Appellant, on May 2, 2018, the DEA issued
him a Notice of Proposed Removal (“Notice”) based on his
engagement in “Conduct Unbecoming a DEA Special
Agent” (“Conduct Unbecoming”). On November 8, 2018,
the deciding official sustained the charge of Conduct Unbe-
coming, finding that, by a preponderance of the evidence,
Appellant’s “conduct was inconsistent with the behavior
expected of a sworn Federal Law Enforcement Officer.”
J.A. 65. As a result, Appellant was removed from his posi-
tion as a Special Agent.
Appellant appealed his termination to the Board,
which affirmed. He then timely appealed to this court. We
have jurisdiction under 28 U.S.C. § 1295(a)(9) and 5 U.S.C.
§ 7703(b)(1).
II
“Our scope of review in an appeal from a decision of the
Board is limited.” Cheney v. Dep’t of Just., 479 F.3d 1343,
1348 (Fed. Cir. 2007). “We will uphold a decision of the
MSPB unless it is ‘arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law’ or ‘unsup-
ported by substantial evidence.’” Jenkins v. Merit Sys.
Prot. Bd., 911 F.3d 1370, 1373 (Fed. Cir. 2019) (quoting
5 U.S.C. § 7703(c)). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” McEntee v. Merit Sys. Prot. Bd.,
404 F.3d 1320, 1325 (Fed. Cir. 2005) (internal quotation
marks omitted). “On appeal, the petitioner bears the
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DOE v. DOJ 3
burden of establishing error in the Board’s decision.” Jones
v. Merit Sys. Prot. Bd., 98 F.4th 1376, 1380 (Fed. Cir. 2024)
(internal quotation marks and alterations omitted).
III
Appellant’s primary contention is that his termination
was improper because the DEA failed to prove that he
acted with “lascivious intent” when he took the photos at
issue. “Lascivious intent” is an element of a child pornog-
raphy charge under certain criminal statutes. See 18
U.S.C. §§ 2252, 2256(2)(A)(v). Thus, according to Appel-
lant, the Board erred by sustaining a charge for which the
employing agency failed to prove every element.
The flaw in Appellant’s argument is that his removal
was based on the charge of “conduct unbecoming a DEA
Special Agent,” not criminal possession of child pornogra-
phy. See Long v. Soc. Sec. Admin., 635 F.3d 526, 532 (Fed.
Cir. 2011) (“[Appellant] contends that the Agency’s charac-
terization of [his] conduct in the specification of the Com-
plaint establishes that it effectively charged [him] with [a]
criminal offense. The Agency, however, explicitly charged
[Appellant] with conduct unbecoming.”) (internal citation
and quotation marks omitted). The Board acknowledged
as much in its decision: “The issue[] in this appeal [is]
whether the appellant engaged in conduct unbecoming a
DEA Special Agent.” J.A. 2; see also J.A. 7-8 (“[T]he lan-
guage and structure of the proposal notice and decision no-
tice are [not] such that the agency incorporated an element
of intent into its charge. . . . [T]he proposal notice did not
charge the appellant with possession or creation of child
pornography or acting with lascivious intent.”). Appellant
himself concedes in his briefing that he “was charged with
conduct unbecoming a DEA Special Agent, not with the
commission of a crime.” Open. Br. at 18-19.
To prove the conduct unbecoming charge, the DEA
needed to show, by a preponderance of the evidence, only
that Appellant engaged in the conduct alleged in the No-
tice: taking inappropriate photos on his agency-issued cell
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DOE v. DOJ 4
phone. See generally Russo v. U.S. Postal Serv., 284 F.3d
1304, 1308 (Fed. Cir. 2002) (“[W]hen an agency makes a
general charge against an employee, it must specify the
conduct that supports the charge.”). Substantial evidence
supports the Board’s finding that the DEA met this burden.
This includes Appellant’s admission that he took the pho-
tos and overwhelming evidence that they were inappropri-
ate. See, e.g., J.A. 99 (“I’m not denying I took the pictures.
I’m sure I took the pictures. That’s me. But I also delete[d]
them.”) (ellipses omitted); J.A. 100 (expert testimony). The
DEA did not also need to prove that Appellant committed
a crime and, therefore, had no need to prove that Appellant
acted with “lascivious intent.” See generally Long, 635 F.3d
at 532-33 (“Regardless of the outcome of the criminal pro-
ceedings, a review of [Appellant’s] actions clearly show he
is not fit to continue to serve.”).
Appellant also raises a due process argument. He as-
serts that he did not receive adequate notice of the charges
against him because the Agency effectively charged him
with possessing child pornography. However, as we have
already explained, the Notice of Proposed Removal charged
Appellant with Conduct Unbecoming, which is the charge
the Agency subsequently proved and is the sole basis for
his removal. Therefore, Appellant received sufficient no-
tice and was not deprived of due process.
IV
We have considered Appellant’s remaining arguments
and find they lack merit. Accordingly, for the foregoing
reasons, we affirm the final decision of the Board.
AFFIRMED
COSTS
No costs.
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