NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit 

2008-3094 

ROBERTO BORREGO, 

 Petitioner, 

v. 

DEPARTMENT OF HOMELAND SECURITY, 

Respondent. 

 Lorenzo W. Tijerina, of San Antonio, Texas, for petitioner. 

 Jane W. Vanneman, Senior Trial Counsel, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, of Washington, DC, for respondent. With 

her on the brief were Gregory G. Katsas, Acting Assistant Attorney General, Jeanne E. 

Davidson, Director, and Todd M. Hughes, Deputy Director. Of counsel was Sameer P. 

Yerawadekar, Trial Attorney. 

Appealed from: Merit Systems Protection Board 
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2008-3094 

ROBERTO BORREGO, 

 Petitioner, 

v. 

DEPARTMENT OF HOMELAND SECURITY, 

Respondent. 

Petition for review from the Merit Systems Protection Board in DA-0752-07-0229-I-1. 

 ___________________________ 

 DECIDED: October 15, 2008 

 ___________________________ 

Before MAYER, FRIEDMAN, and DYK, Circuit Judges. 

PER CURIAM. 

Petitioner Roberto Borrego (“Borrego”) petitions for review of a decision of the 

Merit Systems Protection Board (“MSPB”) affirming his removal as a border patrol agent 

within the Department of Homeland Security (“agency”). We affirm. 

BACKGROUND 

On January 30, 2004, while off duty, Borrego and his two children were shopping 

at the Sam’s Club store in McAllen, Texas, when store security personnel observed him 

shoplifting approximately $96.00 worth of merchandise. Borrego was arrested and 

charged with theft, a class B misdemeanor pursuant to the Texas Penal Code. The 

criminal charge was later dismissed by the state court. 
At the time of this incident, petitioner Borrego was employed by the Department 

of Homeland Security as a Senior Border Patrol Agent, with eight years of service. 

Borrego admitted to shoplifting at Sam’s Club on January 30, 2004. 

 On September 11, 2006, the agency’s discipline review board proposed 

removing Borrego from his position for the charge of “conduct unbecoming a border 

patrol agent.” On January 31, 2007, the agency issued a final decision sustaining the 

charge and removing Borrego from his position in the agency.

Borrego subsequently appealed to the MSPB. The Administrative Judge (“AJ”) 

held a hearing, at which Borrego was represented by counsel. The AJ found that the 

agency proved that Borrego had engaged in the alleged misconduct, that there was a 

nexus between the off-duty misconduct and the efficiency of the service, that the 

penalty was reasonable and promoted the efficiency of the service, and that there was 

no harmful procedural error by the agency in its removal action. 

Borrego did not seek review by the full MSPB, and, therefore, the initial decision 

of the AJ became the final decision of the Board. Borrego timely petitioned for review to 

this court, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). 

DISCUSSION 

We must affirm the Board’s decision unless it was “(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). See also Kewley v. Dep't of Health & 

Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998). 

2008-3094 2 
 Borrego argues, inter alia, that the agency did not sustain its burden in proving 

the charge of “conduct unbecoming a border patrol agent.” He argues that he was 

removed for making a false statement under oath during the investigation of the theft 

charge. The proposed removal, however, was not for making a false statement. It was 

for conduct unbecoming a border patrol agent, namely, shoplifting while off-duty. 

Borrego admitted, under oath, that he shoplifted while off-duty. In multiple written 

documents and oral statements over many months, he has consistently stated that he 

committed this act. Therefore, there is substantial evidence to support the conclusion 

that Borrego shoplifted while off-duty. 

Borrego argues that the removal was not in accordance with the agency’s 

promulgated rules and practices. He argues that a charge of theft can only carry a 

maximum penalty of up to 14 days suspension, under the agency rule that states: 

Unauthorized use, removal, or possession of a thing of value belonging to 

another employee or private citizen . . . [has a penalty range of] Written 

reprimand to 14-day suspension 

However, the charge at issue is “conduct unbecoming a border patrol agent” which falls 

under the agency’s rule: 

Criminal, infamous, or notoriously disgraceful conduct, or other conduct 

prejudicial to the government . . . [has a penalty range of] 14 days 

suspension to removal. 

Therefore, the penalty of removal is in accordance with the agency’s promulgated rules 

and practices. 

Borrego argues that the removal was an excessive penalty. The AJ reviewed in 

detail the reasons the agency chose the penalty of removal under the Douglas factors. 

2008-3094 3 
2008-3094 4 

Initial Decision at 7-18; See Douglas v. Veterans Admin., 5 M.S.P.R. 280, 303 

(M.S.P.B. 1981). The penalty was not an abuse of discretion. 

Finally, Borrego argues that there were procedural issues that warrant reversal. 

The burden of establishing such procedural errors rests upon the petitioner. Martin v. 

Fed. Aviation Admin., 795 F.2d 995, 997 (Fed. Cir. 1986). Borrego has not established 

procedural error. Borrego asserts that he was denied due process because his attorney 

was not notified of the MSPB hearing. However, Borrego admits that his attorney did 

have one month’s notice before the hearing. Borrego also asserts that the AJ rejected 

submission of evidence of dismissal of the theft charge and copies of case law which 

support his case. The record does not show that any submission was rejected. In 

addition, the dismissal of the theft charge was specifically cited by the AJ on page 5 of 

the Initial Decision. 

We find that the Board's decision was free of legal error and supported by 

substantial evidence, and accordingly we affirm. 

COSTS 

No costs.