NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition 

is not citable as precedent. It is a public record.

United States Court of Appeals for the Federal Circuit 

05-3301 

FELIX PUENTE, 

 Petitioner, 

v. 

DEPARTMENT OF HOMELAND SECURITY, 

 Respondent. 

__________________________ 

DECIDED: July 10, 2006 

 __________________________ 

Before GAJARSA, Circuit Judge, CLEVENGER, Senior Circuit Judge, and PROST, 

Circuit Judge. 

PROST, Circuit Judge. 

 Felix Puente was arrested and indicted for assaulting his wife. Mr. Puente plead 

nolo contendere to a reduced misdemeanor offense. He received deferred adjudication 

and was placed on probation. As a result of these criminal proceedings, Mr. Puente 

was removed from his position at the United States Customs and Border Protection for 

both conduct unbecoming an officer and losing his qualification to carry a firearm. 

Pursuant to a collective bargaining agreement, the removal was the subject of a 

grievance and was ultimately submitted to arbitration. The arbitrator sustained both 
reasons for his removal and Mr. Puente appealed to this court. On appeal, we find that 

the first reason for the removal, namely conduct unbecoming an officer, is supported by 

substantial evidence and thus the first reason is sustained. As to the second reason, 

namely loss of qualification, we find that the arbitrator erred in holding that a “no contest 

plea is one in the same as a conviction.” We therefore vacate the arbitrator’s decision 

affirming the Border Patrol’s removal with instructions for the arbitrator to remand the 

case to the Border Patrol to re-determine the appropriate penalty in light of our decision. 

I. 

On the night of April 29, 2002, Felix Puente, a Senior Patrol Agent with the 

United States Customs and Border Protection (“Border Patrol”)1

 in Laredo, Texas, got 

into an argument with his wife. As a result of the argument, Mrs. Puente called Border 

Patrol Field Operating Supervisor Oscar A. Maldonado, Mr. Puente’s superior, alleging 

that Mr. Puente was pointing his service firearm at her. Mr. Maldonado arrived at the 

couple’s home and questioned Mrs. Puente about the details of this incident. She said 

that Mr. Puente had waved his weapon and pointed it at her face. Mr. Maldonado took 

the firearm from Mr. Puente and the Laredo police were notified. Mr. Puente was 

subsequently arrested and later released on bond. 

On August 27, 2002, the Webb County Texas District Court indicted Mr. Puente 

on two Counts of Aggravated Assault, Felony, against his wife. Thereafter on 

December 19, Mr. Puente plead nolo contendere to the reduced charge of a Class A 

misdemeanor offense. As a result of his no contest plea, he received a court order to 

 1 The Border Patrol has now become part of the Department of Homeland 

Security. 

05-3301 2
serve a two year probation, during which period he would be under the court’s 

supervision and subject to deferred adjudication of the charge brought. On September 

26, 2003, the court issued the conditions of probation, notably that Mr. Puente was 

allowed to carry a firearm during work hours but not while off-duty at home. 

The events of that night also impacted Mr. Puente career with the Border Patrol. 

He was indefinitely suspended pending the disposition of the criminal charges and the 

resolution of any further proposed administrative action deemed appropriate. On 

December 4, 2002, the Border Patrol issued a Letter of Decision for Removal. The 

Border Patrol gave two reasons for the removal. First, it alleged that Mr. Puente had 

committed “Conduct Unbecoming an Officer.” Supporting that reason, the Border Patrol 

stated that Mr. Puente had been arrested, indicted, plead nolo contendere, and received 

deferred adjudication. Second, the employer alleged that Mr. Puente had “Loss of 

Qualifications.” The Border Patrol stated that, due to the Lautenberg Amendment 

codified at 18 U.S.C. §§ 921-922, Mr. Puente could not posses a firearm and therefore 

he was no longer qualified to hold his position.2

 The Border Patrol concluded in its letter 

of removal to Mr. Puente that “[y]our inability to meet the necessary conditions of your 

employment as a Border Patrol Agent established the NEXUS in this matter. 

Furthermore, Your [sic] indictment made front-page news in the Laredo Morning Times 

 2 Section 922(g)(9) states 

it shall be unlawful for any person--who has been convicted in any court of 

a misdemeanor crime of domestic violence, to ship or transport in 

interstate or foreign commerce, or possess in or affecting commerce, any 

firearm or ammunition; or to receive any firearm or ammunition which has 

been shipped or transported in interstate or foreign commerce. 

See also 18 U.S.C. § 921 (2004) (defining the relevant terms like “misdemeanor crime 

of domestic violence”). 

05-3301 3
in August 29, 2002 and further news reports were printed on September 5, 2003 and 

September 13, 2003.” 

Pursuant to the Border Patrol’s collective bargaining agreement, the removal was 

the subject of a grievance and was ultimately submitted to arbitration. At the arbitration 

hearing, among other things, Mr. Puente argued that the Border Patrol had not 

established the second reason for removal, namely the “Loss of Qualification.” Mr. 

Puente argued that 

the agency’s charge . . . is entirely dependent on evidence of the 

Grievant’s conviction. The language of the lone Specification makes it 

abundantly clear that the agency relied on 18 U.S.C. § 921 to assert that 

the Grievant’s conviction, and not merely his no contest plea, prohibited 

him from possessing a firearm . . . . 

On June 6, 2005, the arbitrator issued its decision affirming the agency’s decision to 

remove Mr. Puente stating that “I find that the Employer sustained its burden by a 

preponderance of the evidence in removing the Grievant for cause that was just and 

sufficient and only for the reasons that will promote the efficiency of the Service.” In 

addressing the errors claimed by Mr. Puente, the arbitrator stated that “the Employer’s 

sole burden of proof consists of presenting its proofs in support of the charge brought – 

no more, no less.” As to the first specification, namely the “Conduct Unbecoming an 

Officer,” the arbitrator found no errors in the Border Patrol’s support of the charge of 

conduct unbecoming an officer. As to the second reason for the removal, the arbitrator 

found that “[a] reasonable reading of the . . . specification, contrary to the Union’s 

argument, is that the effect of the Grievant’s no contest plea, the loss of his right to 

possess a firearm, constitutes the charge” and therefore the agency properly found that 

due to the Lautenberg Amendment Mr. Puente could no longer carry a firearm. 

05-3301 4
Mr. Puente appealed the decision of the arbitrator to this court. We have 

jurisdiction pursuant to 5 U.S.C § 7121(f) and § 7703. 

II.

This court reviews decisions of arbitrators in grievances affecting Federal 

employees under the same standard of review that is applied to decisions from the Merit 

Systems Protection Board. See 5 U.S.C. § 7121(f) (2004); Cornelius v. Nutt, 472 U.S. 

648, 656 (1985); Frank v. Dep’t of Transp., 35 F.3d 1554, 1556 (Fed. Cir. 1994). Under 

that standard, this court affirms the decision of the arbitrator unless it is: “(1) arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained 

without procedures required by law, rule, or regulation having been followed; or (3) 

unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (2004); see also Hayes v. 

Dep’t of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984). 

A.

On appeal, Mr. Puente argues that the arbitrator erred as a matter of law in 

upholding Mr. Puente’s removal by finding that he had been convicted of a 

misdemeanor crime of assault. He argues that “the record here amply demonstrates 

that [he] was not convicted and the Agency likewise concedes that there was no 

conviction.” Second, Mr. Puente argues that he has successfully completed his 

deferred adjudication and as a result his pending charges were dismissed and thus the 

arbitrator erred as a matter of law in sustaining his removal based on those charges. 

He asks that the arbitrator’s decision be set aside and that we find that he was 

improperly removed from employment. 

05-3301 5
In response, the Border Patrol contends that the arbitrator properly sustained the 

charge of conduct unbecoming an officer as that reason for removal was supported by 

five facts all of which were undisputed. Second, the Border Patrol contends that the 

arbitrator properly sustained the charge of loss of qualification. The Border Patrol 

acknowledges that Mr. Puente was not actually convicted of a crime but rather 

highlights that Mr. Puente’s supervisor Chief Patrol Agent John Montoya relieved Mr. 

Puente of his ability to carry a firearm and the Chief never rescinded that decision. As a 

result, independent of arguments relating to the Lautenberg Amendment and the lack of 

a conviction, the Border Patrol argues that Chief Montoya’s decision barred Mr. Puente 

from carrying a firearm and therefore proved Mr. Puente’s “Loss of Qualification.” 

Based on these considerations, the Border Patrol asks that the decision of the arbitrator 

be affirmed. 

B. 

Reason I in the Border Patrol’s Notice Removal relates to “Conduct Unbecoming 

an Officer.” In its specification, the Border Patrol elaborated that that: 

[o]n April 29, 2002, you were arrested by the Laredo Police Department 

for Aggravated Assault F/2 with Deadly weapon, (family violence). On 

August 27, 2002, the State of Texas, County of Webb issued an 

indictment against you for two counts of Aggravated Assault F2 against 

your wife . . . . On December 19, 2002, before the 341st District Court of 

Webb County, Texas, you pled nolo contender [sic] to Assault, Class-A 

misdemeanor. You received deferred adjudication and were placed on 

two years probation under Community Supervision. 

This specification lays out the events upon which the charge is based. Mr. Puente was 

arrested and indicted, and he pled nolo contendere. He received deferred adjudication 

and was placed on probation. There is no dispute that all of these events took place 

and therefore the Border Patrol has established the allegations in the specification for 

05-3301 6
Reason I. We agree with the Border Patrol that “[b]efore the arbitrator, evidence 

supporting each of [the facts stated in the specification for Reason I] was introduced 

and none were seriously challenged by Mr. Puente.” This conclusion is not changed by 

Mr. Puente’s arguments that successful completion of the deferred adjudication erases 

the basis for this charge of “Conduct Unbecoming an Officer.” All of the factual 

predicates in the specification still remain true even after completing the deferred 

adjudication. Thus, as substantial evidence supports the facts alleged in the 

specification, Reason I for the removal is sustained. 

Reason II in the Border Patrol’s Notice of Removal relates to “Loss of 

Qualifications.” In particular, the specification states that 

[o]n December 19, 2002, before the 341st District Court of Webb County, 

Texas, you pled nolo contendre [sic] to an Assault, Class-A misdemeanor 

against your wife . . . . You received deferred adjudication and were 

placed on two-years probation under Community Supervision. Title 18, 

United States Code, Section 921 makes it illegal for anyone convicted of a 

misdemeanor crime of domestic violence to possess any firearm or 

ammunition. This prohibits you from possessing a firearm. 

This specification, fairly read, makes clear that this reason for removal was predicated 

on 18 U.S.C. § 921 and its application to those convicted of domestic violence. As the 

Border Patrol has stipulated that Mr. Puente was not convicted of any crime, the 

Lautenberg Amendment does not apply. See 18 U.S.C. §§ 921-922. In other words, 

the arbitrator erred in holding that a “no contest plea is one in the same as a conviction.” 

The Border Patrol attempts to argue that other testimony in the record can 

support that Mr. Puente was not qualified to carry a firearm. It argues that independent 

of the Lautenberg Amendment, there exists testimony from Mr. Puente’s supervisors 

that they would not allow Mr. Puente to carry a firearm based on their own internal 

05-3301 7
agency policies. Such arguments attempting to provide an alternative grounds for 

supporting Reason II are unpersuasive. First, there is nothing in the arbitrator’s opinion 

suggesting that any such alternative theory was considered and nothing supports the 

finding that the arbitrator credited any of that testimony. Second, we agree with Mr. 

Puente that the other rationales that might establish his loss of firearm qualification 

cannot be relied upon in this case as Mr. Puente was not on notice that he would need 

to consider such alternate theories. See Lachance v. Merit Sys. Prot. Bd., 147 F.3d 

1367, 1371 (Fed. Cir. 1998) (“When an agency proposes to discipline an employee, it 

must notify the employee of the conduct with which he is charged ‘in sufficient detail to 

permit the employee to make an informed reply.’”) Thus, while it may have been 

entirely proper for the Border Patrol and Chief Montoya to bar Mr. Puente from carrying 

a firearm based on their internal policies, such alternate rationales that establish a loss 

of qualification cannot be formulated for the purposes of the appeal. See Crouse v. 

Dep’t of Treasury, 75 M.S.P.R. 57, 63 (M.S.P.B. 1997) (an administrative judge “may 

not reformulate the charge based on all record evidence”). Accordingly, we conclude 

that the arbitrator erred in sustaining Reason II because, under the specification given in 

the notice of removal, the Border Patrol has not established that Mr. Puente cannot, 

under the Lautenberg Amendment, carry a firearm. 

Given that we are sustaining Reason I but reversing the arbitrator’s decision to 

sustain Reason II, we now address whether the penalty of removal is appropriate in light 

of Reason I alone. The Border Patrol, citing to our decision in Hathaway v. Department 

of Justice, 384 F.3d 1342 (Fed. Cir. 2004), argues that even where not all reasons for 

an adverse action are sustained, we may still sustain the overall adverse action. We do 

05-3301 8
not read Hathaway to allow us to sustain the action in this case. Rather, as we have 

previously held, “this court does not substitute its own judgment for that of the Board 

particularly as to choice of penalty.” Modrowski v. Dep’t of Veterans Affairs, 252 F.3d 

1344, 1349 (Fed. Cir. 2001). “Because we are reversing as to [some of the charges], 

the appropriateness and reasonableness of the penalty must be reconsidered by the 

respective authorities, the agency as to the former, and the Board [or arbitrator] as to 

the latter.” Id. at 1353. 

We therefore vacate the arbitrator’s decision affirming the Border Patrol’s penalty 

of removal with instructions for the arbitrator to remand the case to the Border Patrol to 

re-determine the appropriate penalty in light of our decision. 

05-3301 9