Be Careful of the Wording in a Firing Charge

By on July 11, 2006 in Current Events with 0 Comments

 In a “non-precedent” decision, the Federal Circuit has set aside the firing of a Customs patrol agent, vacating the arbitrator’s decision that had affirmed the agency decision, and remanding the case to the Border Patrol to “re-determine the appropriate penalty in light of our decision.” (p. 2, Opinion in Puente v. Department of Homeland Security, C.A.F.C. No. 05-3301 (non-precedent), 7/10/06)

Here are the facts as related by the court decision.

Puente got into a fight with his wife at their home. She called his boss to report that Puente was pointing his service firearm at her. The supervisor went to the couple’s home, took the weapon from Puente, and called in local law enforcement. Puente was arrested, indicted on two felony counts of aggravated assault, and eventually pled  nolo contendere to a misdemeanor offense. As part of the plea deal he was put on supervised probation. One of the conditions of probation was that he could carry a firearm only while on duty.

Meanwhile, his agency placed him on indefinite suspension. When Puente entered his plea, the agency fired him based on 2 charges—conduct unbecoming an officer and loss of qualifications. The latter charge stemmed from the Lautenberg Amendment which 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.” (note 2, Opinion, p. 3)

In the view of the agency, this law meant that Puente could not carry a firearm, which was a qualification requirement of his position.

Puente’s case ended up before an arbitrator who upheld both charges and sustained the firing. (p. 4)

The appeals court agreed with the arbitrator on the “conduct unbecoming” charge. However, the court did not buy the agency’s position on the qualifications charge.

The court’s reasoning is straight-forward: the charge was keyed to the Lautenberg Amendment; a nolo contendere plea is not a conviction (noting that the agency stipulated that there was no conviction); therefore, the Amendment does not have any bearing on the matter. The arbitrator erred. Since only one charge survives, the court sent the case back to the arbitrator with clear instructions to remand the matter back to the agency “to re-determine the appropriate penalty in light of our decision.” (p. 9)

If there is a lesson learned here, it is to pay close attention to the wording of specifications.

The agency tried to argue before the court that the supervisor had taken away Puente’s firearm on the night of the incident, and had not ever returned it to him. Therefore, as a result of this administrative action Puente could not carry a firearm and therefore no longer met his job qualifications. The court rejected this line of reasoning pointing out it had not been brought up previously and that it was not how the specification was worded. Instead the agency had relied on a specific law. Having done so, the agency has to live with the wording of that law—to the letter.

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.