                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
