A border patrol agent fired in connection with shoplifting off duty while shopping with his two children at a Sam’s Club store in McAllen, Texas, was not able to persuade the appeals court to overturn his removal. (Borrego v. Department of Homeland Security, C.A.F.C. No. 2008-3094 (nonprecedential), 10/15/08) The facts summarized below are as reported by the court’s opinion.
When store security observed Borrego shoplifting about $96 worth of goods, he was arrested and charged with a class B misdemeanor (theft) under Texas criminal law. (Opinion p. 1) Borrego, who at the time was an 8-year employee with the Department of Homeland Security (DHS) serving as a Senior Border Patrol Agent, admitted to the shoplifting. The criminal charge was later dropped, but the agency’s discipline review board initiated his removal for “conduct unbecoming a border patrol agent.” (p. 2)
Borrego appealed to the Merit Systems Protection Board. The Administrative Judge concluded that the agency had made its case, there was a nexus between the shoplifting misconduct and the efficiency of the service, and removal was reasonable under the circumstances. (p.2)
In reaching its decision to sustain the MSPB, among other things the appeals court did not buy Borrego’s argument that he had actually been removed for lying under oath and that the agency did not prove that charge. The court pointed out that the charge was, in fact, conduct unbecoming, that Borrego had admitted several times under oath—including as part of his MSPB hearing—that he had committed the shoplifting, and therefore there was plenty of evidence to support that charge. (p. 2)
Borrego made several other procedural arguments, none of which moved the court. In short, he remains fired. (pp. 3-4)