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 crimi nal proceedings, Mr. Puente was removed from his position at the United States Customs and Border Protection for both conduct unbecoming an officer and losing hi s qualification to carry a firearm. Pursuant to a collective bargaining agreemen t, the removal was the subject of a grievance and was ultimately submitted to ar bitration. The arbitrator sustained bothreasons for his removal and Mr. Puente appealed to this court. On appeal, we find that the first reason for the removal, namely c onduct unbecoming an officer, is supported by substantial evidence and thus t he 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 wit h instructions for the arbitrator to remand the case to the Border Patrol to re-determine t he appropriate penalty in light of our decision.
I. On the night of April 29, 2002, Felix Puente, a Seni or Patrol Agent with the United States Custom s 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 fi rearm 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 hi s 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 Texa s District Court indicted Mr. Puente on two Counts of Aggravated Assault, Fe lony, against his wife. Thereafter on December 19, Mr. Puente plead nolo contendere to the reduced charge of a Class A misdemeanor offense. As a re sult of his no contest plea, he received a court order to

1 The Border Patrol has now become part of the Departm ent of Homeland Security.

05-3301 2serve a two year probation, during wh ich period he would be under the court’s supervision and subject to deferred adjudicati on of the charge brought. On September 26, 2003, the court issued the conditions of probation, notably t hat 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 t he Border Patrol. He was indefinitely suspended pending the dispos ition of the crimin al charges and the resolution of any further proposed adminis trative action deemed appropriate. On December 4, 2002, the Border Patrol iss ued a Letter of Decision for Removal. The Border Patrol gave two reasons for the remo val. First, it all eged that Mr. Puente had committed “Conduct Unbecoming an Officer.” Suppor ting that reason, the Border Patrol stated that Mr. Puente had been arrested, indicted, plead nolo contendere , and received deferred adjudication. Second, the employ er 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 po sses 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--w ho has been convicted in any court of a misdemeanor crime of domestic viol ence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receiv e any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. See also 18 U.S.C. § 921 (2004) (def ining the relevant terms like “misdemeanor crime of domestic violence”).

05-3301 3in August 29, 2002 and further news reports were printed on September 5, 2003 and September 13, 2003.” Pursuant to the Border Patrol’s colle ctive bargaining agreement, the removal was the subject of a grievance and was ultimately s ubmitted to arbitration. At the arbitration hearing, among other things, Mr. Puente argued that the Bor der Patrol had not established the second reason for removal, nam ely the “Loss of Qualification.” Mr. Puente argued that the agency’s charge . . . is ent irely 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 c ontest 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 t hat 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 effici ency 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 specif ication, namely the “Conduct Unbecoming an Officer,” the arbitrator found no errors in the Border Patrol’s suppor t of the charge of conduct unbecoming an officer. As to the sec ond 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 4Mr. Puente appealed the decisi on 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 arbitr ators in grievances affecting Federal employees under the same standard of review t hat 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 discreti on, or otherwise not in accord ance 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 arbi trator erred as a matter of law in upholding Mr. Puente’s removal by findi ng that he had been convicted of a misdemeanor crime of assault. He argues that “the reco rd here amply demonstrates that [he] was not convic ted 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 pendi ng charges were dismissed and thus the arbitrator erred as a matter of law in su staining 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 5In response, the Border Patrol contends t hat the arbitrator pr operly sustained the charge of conduct unbecoming an officer as t hat reason for removal was supported by five facts all of which were undisputed. Second, the Bor der Patrol contends that the arbitrator properly sustained t he charge of loss of qualificat ion. The Border Patrol acknowledges that Mr. Puente was not act ually convicted of a crime but rather highlights that Mr. Puente’s supervisor Chie f Patrol Agent John Montoya relieved Mr. Puente of his ability to carry a firearm and t he Chief never rescinded t hat 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 Patr ol asks that the decisio n of the arbitrator be affirmed.
B. Reason I in the Border Patrol’s Notice Removal relates to “Conduct Unbecoming an Officer.” In its specification, t he Border Patrol elaborated that that: [o]n April 29, 2002, you were arre sted by the Laredo Police Department for Aggravated Assault F/2 with Deadl y weapon, (family violence). On August 27, 2002, the State of Te xas, 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 deferr ed adjudication and were placed on two years probation under Community Supervision. This specification lays out the events upon wh ich 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 dis pute that all of thes e events took place and therefore the Border Patrol has established the allegations in the specification for

05-3301 6Reason I. We agree with the Bo rder Patrol that “[b]efor e the arbitrator, evidence supporting each of [the facts stated in the specificatio n for Reason I] was introduced and none were seriously challenged by Mr. Puent e.” This conclusion is not changed by Mr. Puente’s arguments that successful comp letion of the deferr ed adjudication erases the basis for this charge of “Conduct Unbec oming an Officer.” All of the factual predicates in the specificat ion still remain true even after completing the deferred adjudication. Thus, as substantial evi dence supports the facts alleged in the specification, Reason I for the removal is sustained. Reason II in the Border Patrol’s Noti ce 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 Co mmunity Supervision. Title 18, United States Code, Section 921 makes it illegal for anyone convicted of a misdemeanor crime of domestic viol ence to possess any firearm or ammunition. This prohibits you from possessing a firearm. This specification, fairly r ead, 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. P uente 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 t hat 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 te stimony from Mr. Puente’s supervisors that they would not allow Mr. Puente to carry a firearm based on their own internal

05-3301 7agency policies. Such arguments attempting to provide an alternative grounds for supporting Reason II are unpersuasive. First, ther e is nothing in the arbitrator’s opinion suggesting that any such alternative theor y was considered and nothing supports the finding that the arbitrator cr edited 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. P uente 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 c harged ‘in sufficient detail to permit the employee to make an informed r eply.’”) 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 formulat ed 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 Bo rder 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 penal ty of removal is appropriate in light of Reason I alone. The Border Pa trol, 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 su stain the overall adverse action. We do

05-3301 8not read Hathaway to allow us to sustain the action in this case. Rather, as we have previously held, “this court does not substitu te its own judgment fo r 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 dec ision affirming the Border Patrol’s penalty of removal with instructions for the arbitrator to remand the ca se to the Border Patrol to re-determine the appropriate penalty in light of our decision.

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