NOTE: This disposition is nonprecedential.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 Litigation Branch, Civil Division, United 

States Department of Justice, of Washington, DC, for respondent. 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 Merit Systems Protection Board 
NOTE: This disposition is nonprecedential.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. 

 __________________________ 

 DECIDED: 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 Security’s (“DHS”) action in 

removing Caswell from the position of Border Patrol Agent, effective September 29, 

2006, on the charge of failure to respond to an agent requesting 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 and another border patrol agent, Ramon 

Villarreal, pursued three individuals 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 suspects complied, but a hostile encounter 

ensued with the male suspect, Avila. As Villarreal scuffled with Avila, Caswell 

approached and unsuccessfully attempted to handcuff the female suspects. Villarreal 

called for back up, and Caswell remained with the two unrestrained females. 

Eventually, Avila submitted to arrest. Caswell denied seeing Villarreal and Avila 

struggling, and testified that he did not perceive Villarreal to be in danger. To the 

contrary, Caswell said he believed that Villarreal used excessive force in making the 

arrest. Two border control agents witnessed at least part of the incident through beach 

and station cameras. Both confirmed 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 held that DHS proved its charge by a 

preponderance of the evidence. Caswell claims that he acted properly because he was 

supervising two unrestrained suspects, and Villarreal was not in danger. He further 

claims that his removal violated the Whistleblower Protection Act (“WPA”) because it 

was in reprisal for protected disclosures. 5 U.S.C. § 2302(a)-(b). 

We must affirm the final decision of the board unless we conclude 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 demeanor and credibility first-hand. Upon 

review of the record, we conclude that the board’s decision was neither arbitrary, 

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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 suspects as soon as a fellow officer calls for 

help. Even if Caswell reasonably believed that Villarreal was not in danger, in the 

moment of conflict Villarreal’s perceptions control. Second, Caswell 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 policies by using unreasonable force against 

Avila could be deemed a protected disclosure under the WPA, he fails to establish that 

this disclosure was a contributing factor in his removal. The whistleblower defense is 

therefore not relevant. Substantial evidence supports the board’s conclusion that the 

removal penalty was reasonable in light of the circumstances.