                 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


                                        05-3159



                                   PETER SANTANA,

                                                            Petitioner,

                                            v.

                     DEPARTMENT OF HOMELAND SECURITY,

                                                            Respondent.



                             ________________________

                               DECIDED: April 6, 2006
                             ________________________


Before MICHEL, Chief Judge, GAJARSA, and LINN Circuit Judges.

PER CURIAM.

                                       DECISION

        Peter Santana (“Mr. Santana”), a former Senior Auditor from the Department of

Homeland Security (“Agency”), appeals from the final order of the Merit Systems

Protection Board (“Board”) affirming the Administrative Judge's ("AJ's") decision.

Santana v. Dep’t of Homeland Sec., M.S.P.B. No. SF-0752-04-0194-I-1 (February 8,

2005) (“Final Order”). The AJ affirmed the Agency's removal of Mr. Santana on charges

of (1) failure to report an arrest, (2) failure to report criminal charges, (3) failure to
provide complete and (4) accurate information during a periodic background

investigation, and failure to provide complete and accurate information in an Internal

Affairs investigation. Santana v. Dep’t of Homeland Sec., M.S.P.B. No. SF-0752-04-

0194-I-1 (August 6, 2004) (“Initial Decision”). We affirm the Board's decision.

                                       BACKGROUND

       On May 4, 1994, Mr. Santana was charged with and arrested for driving under

the influence ("DUI").    He pled no contest to the charge and was convicted.          The

Agency's Conduct and Employee Responsibilities ("ACER") policy requires employees

to report any arrest, detention, or formal charge of law violation. Mr. Santana failed to

report this arrest to his supervisor or the Agency's Internal Affairs ("IA") office.

       On July 19, 1994, Mr. Santana was involved in an automobile accident. As a

result of the accident he was charged with a DUI and driving with a suspended license.

He was released pending review of the accident by the district attorney. An arrest

warrant later issued for Mr. Santana stemming from this accident. On October 12,

1996, Mr. Santana was arrested pursuant to the warrant and posted bail for his release.

The charges were subsequently dismissed. Mr. Santana failed to report this arrest

promptly to his supervisor or IA, as required by the ACER policy.

       On January 4, 2000, Mr. Santana was charged with domestic battery, a

misdemeanor violation under the California Penal Code section 242-243(e), and an

arrest warrant was issued.       The Santa Clara County Superior Court ordered Mr.

Santana to report to the San Jose Police Department ("SJPD"). When Mr. Santana

reported to the SJPD, he was booked, fingerprinted, and released. Mr. Santana again




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failed to report this charge and arrest promptly to his supervisor or the IA, as required by

the ACER policy.

          On July 12, 2001, Mr. Santana was arrested for driving under the influence,

running a red light and hitting another vehicle. The following day, Mr. Santana called

his supervisor, Mr. Napolean Ebarle, and reported that he was in an accident, in the

hospital and unable to work that day. Mr. Santana did not disclose being arrested,

however, his supervisor was advised by the SJPD of his accident and arrest.

          After this last incident, the IA initiated an investigation.   This investigation

revealed the previous arrests of which the Agency had not been notified. During the

investigation, the IA discovered an SF-85 form, Questionnaire for Public Trust Positions,

filled out by Mr. Santana in 1999. The form contained a question asking about previous

arrests, charges and convictions. Mr. Santana answered it by attaching a copy of his

driving record, which disclosed his arrest from the May 4, 1994 DUI but not the 1996

arrest.

          In December, 2001, the IA special agents interviewed Mr. Santana under oath.

During the questioning, Mr. Santana again failed to mention the 1996 arrest.            Mr.

Santana also submitted an affidavit to the IA that contained a question regarding

whether he had ever been arrested, detained, questioned by law enforcement or

charged with a crime. His answer failed to disclose the 1996 arrest or the arrest related

to the domestic battery charge.

          Based on the findings of the IA investigation, the Agency removed Mr. Santana.

Mr. Santana appealed his removal to the Board. The AJ sustained all the charges

against Mr. Santana and affirmed the removal. Subsequently, the Board denied Mr.




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Santana's petition to review the AJ's initial decision, thus rendering it final. Final Order

at 1. Mr. Santana timely appealed the Final Order to this court.

                                STANDARD OF REVIEW

        This court must affirm the decision of the Board unless the decision 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) (2000);

Kievenaar v. Office of Personnel Mgmt., 421 F.3d 1359, 1362 (Fed. Cir. 2005). This

court has jurisdiction over “a petition to review a final order or final decision of the

Board.” 5 U.S.C. § 7703(b)(1) (2000).

                                       DISCUSSION

        Mr. Santana was charged with (1) failure to report an arrest, (2) failure to report

criminal charges, (3) failure to provide complete and accurate information during a

periodic background investigation, and (4) failure to provide complete and accurate

information in an IA investigation. In affirming the removal, the AJ applied the lack of

candor standard established by this court in Ludlum v. Dep't of Justice, 278 F.3d 1280

(Fed. Cir. 2002). Mr. Santana argues that the Board erred in determining that the

charges raised against him were equivalent to the charge of lack of candor. According

to Mr. Santana, the Board applied the wrong analysis; it should have considered his

actions as falsifications. "Lack of candor and falsification are different, although related,

forms of misconduct, and the latter is not a necessary element of the former." Id. at

1283.    To establish falsification, the Agency needs to show Mr. Santana made an

affirmative misrepresentation and prove intent to deceive.         See Naekel v. Dep't of




05-3159                                      4
Trans., 782 F.2d 975, 977 (Fed. Cir. 1986). Conversely, "lack of candor is a broader

and more flexible concept." Ludlum, 278 F.3d at 1284. Lack of candor can involve "a

failure to disclose something that, in the circumstances, should have been disclosed in

order to make the given statement accurate or complete." Id.

        For support of Mr. Santana's assertion that the charges against him were similar

to falsification, he cited several Board cases. See Hanker v. Dep't of the Treasury, 73

M.S.P.R. 159 (1997) (requiring intent in determining falsification when the appellant

failed to list previous employment and falsely answered no to several questions on an

employment form); Daniels v. U.S. Postal Serv., 57 M.S.P.R. 272 (1993) (requiring

intent in determining falsification when an appellant, while filling out a form for the

agency either falsely left an answer blank or wrote "N/A"); Forma v. Dep't of Justice, 57

M.S.P.R. 97, 99, 103 (1993) (requiring intent in determining falsification when the

appellant falsely answered negatively to three questions posed by the agency); Box v.

U.S. Postal Serv., 51 M.S.P.R. 401, 405-406 (1991) (requiring intent in determining

falsification when the appellant falsely answered a question on a form requesting a list

of all convictions and pending criminal charges).

        Though the AJ considered the assertions raised by Mr. Santana, he ultimately

compared Mr. Santana's charges to that of the Ludlum petitioner. Initial Decision at 2,

n. 1.    In Ludlum, the petitioner was initially removed by the Federal Bureau of

Investigation ("FBI") for traveling with an unauthorized passenger in his official Bureau

vehicle: his daughter, whom he had picked up at her daycare center. 278 F.3d at 1281.

The petitioner, during the FBI investigation, claimed that he had not used the vehicle to

pick up his daughter more than twelve times. Id. As part of the interview, the FBI




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prepared an affidavit stating that the petitioner had only picked up his daughter three

times. Id. The petitioner reviewed and signed the statement. Id. In another statement

made a month later, the petitioner claimed to have reviewed his records, and that he

actually picked up his daughter fourteen times. Id. at 1281-82. The petitioner was

given a 120 day suspension due to his lack of candor. Id. at 1283.

       In Ludlum, lack of candor was equated to lying under oath or lying to a

supervisor. Id. at 1284. This court identified lack of candor as not responding fully and

truthfully to questions asked by the agency. Id. "Although lack of candor necessarily

involves an element of deception, 'intent to deceive' is not a separate element of that

offense -- as it is for 'falsification.'" Id. at 1284-85. The AJ properly applied Ludlum to

the charges against Mr. Santana.

       In considering the charges of failure to report an arrest and failure to report

criminal charges, the AJ's decision is supported by substantial evidence. Mr. Santana

stipulates that he knew he had a duty to inform either his supervisor or the IA about any

arrests, detentions, or criminal charges.    Therefore, his failure to disclose his 1994

arrest, 1996 arrest or his domestic abuse arrest lacked candor. Pursuant to Ludlum,

intent is not a required element to establish support for the charge of lack of candor.

       With respect to the charge of failure to provide complete and accurate

information during a periodic background investigation, Mr. Santana failed to disclose

information which would have made his statement accurate or complete. Mr. Santana

submitted an inaccurate driving record to the Agency when he was asked about

previous arrests. The driving record contained his 1994 arrest, but it failed to list the

1996 arrest. The California Department of Motor Vehicles created the driving record;




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however, Mr. Santana reviewed it, having made notations on the record, without adding

the 1996 arrest. Mr. Santana's submission failed to fully and truthfully respond to a

question asked by the Agency.

      Finally, the charge of failure to provide complete and accurate information during

the IA investigation is also supported by substantial evidence. In an interview during the

IA investigation in December, 2001, Mr. Santana failed to mention the 1996 arrest when

asked about previous arrests.     He then failed to include the 1996 arrest and the

domestic abuse charge in an affidavit, immediately following the interview, when asked

to list prior arrests and charges. Much like the Ludlum appellant, Mr. Santana failed to

answer the IA fully or truthfully during an interview and then signed an affidavit

containing the wrong information. Therefore, Mr. Santana lacked candor responding to

questions asked by the Agency.

      Because the Board's decision applied the proper legal standard and is supported

by substantial evidence, we affirm.




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