NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3253

ROBERT M. CASWELL, Petitioner,

v.

DEPARTMENT OF HOMELAND SECURITY, Respondent.

Robert M. Caswell , of Cle Elum, Washington, pro se. Tara K. Hogan , Trial Attorney, Commercial Litigatio n Branch, Civil Division, United States Department of Justice, of Washington, DC, for res pondent. With her on the brief were Peter D. Keisler , Assistant Attorney General, Jeanne E. Davidson , Director, and Todd M. Hughes , Deputy Director.

Appealed from: United States Me rit Systems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3253

ROBERT M. CASWELL, Petitioner,

v. DEPARTMENT OF HOMELAND SECURITY,

Respondent.

__________ ________________ DECI DED: December 7, 2007

_________________________

Before MAYER, Circuit Judge , PLAGER, Senior Circuit Judge and LOURIE, Circuit Judge

. PER CURIAM. Robert M. Caswell appeals the decision of the United States Merit Systems Protection Board, affirming the Department of Homeland Se curity’s (“DHS”) action in removing Caswell from the position of Bor der Patrol Agent, effective September 29, 2006, on the charge of failure to res pond to an agent reques ting assistance. Caswell v. Dept. of Homeland Security , No. SF-0752-07-0090-I-1 (MSPB Mar. 1, 2007). We

affirm

.On September 26, 2005, Caswell an d another border patrol agent, Ramon Villarreal, pursued three indivi duals suspected of entering the country illegally along Imperial Beach in San Diego, California. Villarreal reached the suspects first, and

ordered them to halt. The two female su spects complied, but a hostile encounter ensued with the male suspect, Avila. As Villarreal scuffled with Avila, Caswell approached and unsuccessfully attempted to han dcuff the female suspects. Villarreal called for back up, and Caswell remained wi th the two unrestrained females. Eventually, Avila submitted to arrest. Ca swell denied seeing Villarreal and Avila struggling, and testifie d that he did not perceive Villa rreal to be in danger. To the contrary, Caswell said he believed that Vill arreal used excessive force in making the arrest. Two border control agents witnessed at least part of the incident through beach

and station cameras. Both c onfirmed the physical altercation as described by Villarreal. The board credited Villarreal’s testimony and found that despite calls for help, Caswell did not respond. The board hel d that DHS proved its charge by a preponderance of the evidence. Caswell clai ms that he acted properly because he was supervising two unrestrained suspects, and Vi llarreal was not in danger. He further claims that his removal violated the Whistleblower Protection Act (“WPA”) because it was in reprisal for protected discl osures. 5 U.S.C. § 2302(a)-(b).

We must affirm the final decision of t he board unless we conc lude that it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 7703(c). The board’s fact finding function is benefited by the opportunity to hear live testimony and assess witness dem eanor and credibility first-hand. Upon review of the record, we conclude that the board’s decision was neither arbitrary,

2007-3253 22007-3253 3 capricious, nor an abuse of discretion. Two facts, in addition to the board’s credibility assessments, are particularly persuasive. First, border patrol agents are trained to abandon their role supervising unrestrained suspec ts as soon as a fellow officer calls for help. Even if Caswell reason ably believed that Villarreal was not in danger, in the moment of conflict Villarreal’s perceptions co ntrol. Second, Caswe ll previously failed to respond to an agent requesting assistance in 2003, and was put on notice of the categorical need to respond to an agent requesting assistance. We also agree with the board’s analysis of Caswell’s WPA defense. Even if his allegation that Villarreal violated agency po licies by using unreasonable force against Avila could be deemed a protected disclosure under the WPA, he fails to establish that

this disclosure was a contribut ing factor in his removal. The whistleblower defense is therefore not relevant. Subs tantial evidence supports the board’s conclusion that the removal penalty was reasonable in light of the circumstances.