Allen Bennett, Petitioner, v. Department of Justice, Respondent, 831 F.2d 306 (Fed. Cir. 1987)

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U.S. Court of Appeals for the Federal Circuit - 831 F.2d 306 (Fed. Cir. 1987) September 10, 1987

Before BISSELL, Circuit Judge, JACK R. MILLER, Senior Circuit Judge, and ARCHER, Circuit Judge.



The final decision of the Merit Systems Protection Board, Docket Number SF07318710047, sustaining the decision of the Immigration and Naturalization Service (agency) that Bennett was unsuitable for employment as a border patrol agent is affirmed.


The agency based its negative suitability decision upon a number of separate charges. Of these, the administrative judge did not sustain charges 3, 4 and 5 and in sustaining charges 1, 2, 8 and 9, found those charges de minimis. However, the administrative judge found that sustained charges 6, 7, 10 and 12 were serious enough to support the agency's determination. Charges 6, 7 and 10 pertained to Bennett's prior arrest and conviction for solicitation of prostitution leading to his termination from employment as a correctional officer with the Fresno County Sheriff's Department as well as his termination from employment with the Fresno County Juvenile Hall. Charge 12 pertained to Bennett's termination from the Sierra Hospital for falsification of time sheets. The administrative judge found that the cumulative effect of these incidents was sufficient to disqualify him for the position of border patrol agent unless Bennett could demonstrate significant evidence of rehabilitation. Bennett having failed to demonstrate rehabilitation, the administrative judge sustained the agency's decision.

After reviewing the submissions of the parties, we find no basis under our statutorily prescribed scope of review for setting aside the Board's final decision. 5 U.S.C. § 7703(c) (1982).