Nathan Duenas v. Department of Defense
SF-0752-18-0215-I-1
| MSPB | Feb 26, 2024Background
- Nathan S. Duenas was removed from his position by the Department of Defense for alleged lack of candor related to his responses on a 2015 security clearance questionnaire (SF-86).
- Duenas appealed his removal to the Merit Systems Protection Board (MSPB), arguing the agency failed to prove his intent to deceive and committed prohibited personnel practices in its actions.
- The MSPB administrative judge affirmed the agency's removal decision, finding a nexus between Duenas’s misconduct and the efficiency of the service.
- Duenas petitioned the Board for review, challenging the finding of lack of candor, arguing discrimination related to a 2017 arrest, and disputing the penalty's proportionality.
- The Board reviewed the petition, addressed procedural errors, clarified the applicable standards for disparate penalty claims, and ultimately affirmed the administrative judge’s decision with modifications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Lack of candor charge | No intent to deceive on SF-86 | Duenas misrepresented facts, justifying removal | Agency proved charge; removal affirmed |
| Discrimination under 5 U.S.C. § 2302(b)(10) | Removal based on July 2017 arrest was discriminatory | Action was related to efficiency of the service | Discriminatory motive not found; nexus justified action |
| Application of Douglas factors | Judge improperly weighed penalty factors | Penalty appropriately balanced under Douglas | Penalty review proper; agency exercised reasonable discretion |
| Denial of witness testimony | Judge abused discretion in denying witnesses | Exclusion of witnesses was procedural and justified | Denial not prejudicial, no basis for reversal |
Key Cases Cited
- Douglas v. Veterans Admin., 5 M.S.P.R. 280 (M.S.P.B. 1981) (establishes the framework for reviewing agency-imposed discipline factors)
- Middleton v. Dep't of Justice, 23 M.S.P.R. 223 (M.S.P.B. 1984) (finding that a nexus between misconduct and service efficiency can negate discrimination claims)
- Facer v. Dep't of the Air Force, 836 F.2d 535 (Fed. Cir. 1988) (clarifies standards for disparate penalty claims and comparator analysis)