Border Patrol Agent Reinstated with Full Back Pay and Benefits Plus Attorney’s Fees
A Rio Grande Valley Sector Border Patrol Agent was removed from Federal Service for events surrounding an encounter with a non-cooperative undocumented alien resisting apprehension. The Agent was removed based on two charges of misconduct:
- Failure to follow the use of force policy by firing a warning shot; and
- Lack of candor.
The Agent hired Roberto M. Garcia to represent his interests before the Merit Systems Protection Board. Mr. Garcia filed an appeal of the removal with the MSPB on April 13, 2015. The case was heard by an MSPB Administrative Law Judge on December 3, 2015.
On January 20, 2016 the Judge issued her Initial Decision reversing the Agency’s action of removing the Agent from Federal Service. The Judge found that the Agency had denied the Agent’s due process rights when the Deciding Official considered new and material information not previously disclosed to the Agent. The Judge found that the undisclosed information considered by the Deciding Official was potentially serious or inflammatory. The Agent was denied the right to notice of the new and material information used against him and an opportunity to respond.
The Judge ordered the Agency to cancel the removal and to reinstate the Agent to full duty with full back pay and interest and to adjust the benefits that he lost. The Judge further ordered that the Agency pay attorney’s fees.