Using The "He Said/He Said" Defense in a Removal Action
By Susan Smith
Thursday, December 20, 2007
A Border Patrol Agent, fired for failing to respond to a fellow agent's request for help in detaining a hostile suspect, could not convince a court to set aside the adverse action. (Caswell v. Department of Homeland Security, C.A.F.C. No. 2007-3253 (nonprecedential), 12/07/07)
According to the court's decision, here is how the case unfolded:
Caswell and his co-worker chased three suspects near the San Diego border area. The co-worker reached the suspects, ordered them to stop, and ended up in a "hostile encounter" with the male suspect. While they were scuffling, the co-worker called on Caswell for backup. However, meanwhile Caswell had caught up with the other two suspects who offered no resistance. He stayed with these two and did not respond with assistance. (Opinion, p. 2)
Caswell and his co-worker offered different accounts of the incident. Caswell claimed that he did not see the struggle, did not see any real danger to the other agent, and that the other agent used "excessive force" in making the arrest. Two agents who had witnessed at least part of the struggle through field glasses backed up the second agent's version of the events. (p. 2)
In this "he said/he said" situation, the Merit Systems Protection Board found the co-worker's testimony to be more credible and ruled that the agency had proved its charge. The Board therefore sustained Caswell's removal.
The appeals court now upholds the Board. The court, as is typical, gave deference to the Board's witness credibility determination: "The board's fact finding function is benefited by the opportunity to hear live testimony and assess witness demeanor and credibility first-hand." (p. 3) The court cited two additional considerations. First, border patrol training requires that an agent assist under these circumstances—it was expected that Caswell would give up watching over the other suspects in order to lend assistance as soon as his co-worker called for help. The second factor was that Caswell had a couple of years earlier failed to respond to a call for help from a fellow agent and had been "put of the categorical need to respond to an agent requesting assistance." (p. 3)
Caswell had offered a whistleblower theory in his defense, arguing that because he had reported the other agent had used excessive force he was being fired in retaliation. The court agreed with the Board's analysis in rejecting this defense. (p. 3)
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