Santana v. Department of Homeland Security , 179 F. App'x 696 ( 2006 )

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
05-3159 5
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;
05-3159 6
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.
05-3159 7