229 Ct. Cl. 833 | Ct. Cl. | 1982
In this civilian pay case, plaintiff seeks review of a Federal Employee Appeals Authority (feaa) decision
On July 31, 1977, plaintiff received a career-conditional appointment with the INS as a Border Patrol Agent, subject
Plaintiff vigorously contends that his dismissal was due to his filing for bankruptcy on May 2, 1978, in violation of his constitutional and statutory right to declare bankruptcy. We conclude, however, as the feaa held, that plaintiff was dismissed not for filing a bankruptcy petition, but because his continued excessive indebtedness reflected unfavorably upon the INS and the Government.
Failure on the part of an officer to pay his just debts quickly, will bring the Service into disrepute very quickly. As a part of his responsibility to conduct himself properly, an agent is expected to attend promptly to his personal financial obligations. Failure to do so may be deemed sufficient cause for disciplinary action, the most serious of which can be dismissal.
The Federal courts have upheld reasonable, understandable personnel policies which govern the conduct of govern
It is significant that plaintiff was still in a probationary status at the time of his dismissal. It is now well settled that our review of the discharge of a probationary employee is quite limited. Shaw v. United States, 223 Ct. Cl. 532, 543-44, 622 F.2d 520, 527, cert. denied, 449 U.S. 881 (1980), citing Perlongo v. United States, 215 Ct. Cl. 982 (1977), cert. denied, 436 U.S. 944 (1978); Dargo v. United States, 176 Ct. Cl. 1193, 1205 (1966), citing Bander v. United States, 141 Ct. Cl. 373, 158 F.Supp. 564, cert. denied, 358 U.S. 855 (1958). In this case, the INS acted to rid itself of an employee whose financial situation made him an undesirable Border Patrol Agent. We simply do not find this action arbitrary, capricious, or unsupported by substantial evidence.
Plaintiff urges this court to find that his termination resulted from pre-appointment debts, and that our decision in Cohen v. United States, 181 Ct. Cl. 400, 384 F.2d 1001 (1967), requires the ins to comply with 5 C.F.R. § 315.805, which sets forth procedures for the termination of probationers for pre-appointment conditions. We need not quarrel with plaintiffs interpretation of Cohen because we find that plaintiffs termination resulted from pos i-appointment circumstances. Even accepting plaintiffs assertion that all of his debts arose prior to his time of employment with INS, he was discharged for allowing those debts to continue during the first nine months of his probationary period. The stated ground for his termination was chronic indebtedness which reflected unfavorably upon the INS and Government
The facts of plaintiffs continuing indebtedness and the lack of any demonstrated attempts to make any effort to pay creditors or to work out some financial arrangements with them all constitute posi-appointment conditions. For this reason, we conclude that the INS was not required to comply with the procedures in 5 C.F.R. §315.805 regarding terminations for pre-appointment conditions. We find that plaintiffs termination was in compliance with the procedures governing the termination of probationary employees for post-appointment conditions.
The Ninth Circuit held in Dennis v. Blount, supra, that "[t]he Post Office can take into account the failure of its employees to pay their just debts.” 497 F.2d at 1307. We adopt a similar position as regards the INS decision to terminate plaintiff in this case. Indeed, the policy enunciated in Dennis v. Blount applies to this case with at least equal if not greater force in view of the fact that plaintiff was responsible, in his position as a Border Patrol Agent in the San Diego area, for preserving this nation’s borders against illegal traffic in drugs and aliens. In summary, we conclude that Mr. Waide was fired not for filing bankruptcy but for chronic indebtedness which violated INS employment policies and reflected unfavorably upon the INS as Government as his employer.
Accordingly, it is therefore ordered, after consideration of the submissions of the parties, with oral argument of counsel, that plaintiffs motion for summary judgment is
Plaintiffs motion for reconsideration was denied March 19, 1982; plaintiffs petition for a writ of certiorari was denied October 4,1982.
FEAA Decision No. SF315H80068 (Sept. 22,1978).
The notes accompanying a section of the Bankruptcy Reform Act of 1978, 11 U.S.C. § 525 (Supp. IV 1980) (which is not applicable to this case), make it clear that § 525 is intended to prohibit an employee’s termination "based solely on the basis of the bankruptcy, on the basis of insolvency before or during bankruptcy prior to a determination of discharge or on the basis of nonpayment of a debt discharged in the bankruptcy case (the Perez situation). It does not prohibit consideration of other factors, such as future financial responsibility or ability, and does not prohibit imposition of requirements such as net capital rules, if applied nondiscriminatorily.” (Emphasis added.)
5 C.F.R. §315.804 sets forth the required procedures for terminating a government employee for unsatisfactory performance or conduct during his probationary period. The regulation provides in part that the agency "shall terminate his services by notifying him in writing as to why he is being separated and the effective date of the action.” The two-page INS termination letter of July 26, 1978, clearly met the requirements of the applicable regulation quoted above.