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COMMITTEE FOR PROTECTION OF FIRST AMENDMENT RIGHTS

June 3, 1977

COMMITTEE FOR PROTECTION OF FIRST AMENDMENT RIGHTS OF DEPARTMENT OF AGRICULTURE EMPLOYEES, Plaintiff,
v.
BOB BERGLAND, Secretary of Agriculture, et al., Defendants



The opinion of the court was delivered by: PRATT

 Introduction

 Plaintiff, an ad hoc organization composed of past and present employees of the United States Department of Agriculture occupying positions in the field service entitled "state directors" of the Farmers Home Administration (FmHA) and "executive directors" of the Agricultural Stabilization and Conservation Service (ASCS), brought this action for declaratory and injunctive relief to enjoin the defendants from denying its members employment "on the basis of their political beliefs and associations." *fn1" The gravamen of the complaint is that defendant Bergland, the Secretary of Agriculture, "is dismissing and threatening to dismiss plaintiff's members from their positions . . . for partisan political reasons and threatening to and has appointed political supporters of the Carter administration to the positions now occupied by plaintiff's members in consideration of their political support." *fn2" Additionally, plaintiff alleges that the Department of Agriculture has requested the Civil Service Commission to re-classify the employment positions at issue in order to evade its members' statutory and constitutional rights. Moreover, it is asserted that any action undertaken by the Civil Service Commission (Commission) to this end, as well as, the rules guiding the Commission in this regard, operate to deny plaintiff's members their rights, under the First and Fifth Amendments to the United States Constitution.

 On April 22, and April 25, 1977, the Department of Agriculture terminated a total of nine (9) FmHA State Directors and seventeen (17) ASCS State Executive Directors. The following day, at plaintiff's request, a hearing was held on plaintiff's motion for a temporary restraining order which motion was denied. Subsequently, plaintiff filed a motion for a preliminary injunction, which the defendants opposed. Defendants also submitted a motion to dismiss. On May 12, and May 13, 1977, a hearing was held on the motion for a preliminary injunction consolidated with a hearing on the merits. Fed. R. Civ. P. 65(a)(2). Based on the hearing and the record herein, the Court makes the following findings of fact and conclusions of law.

 Findings of Fact

 1. The Agricultural Stabilization and Conservation Service (ASCS) is an agency within the Department of Agriculture. Its principal functions include the administration of the acreage allotment and farm marketing quota program under the Agricultural Adjustment Act of 1938, as amended, 7 U.S.C. § 1301 et seq., and of commodity price support and farmland conservation programs. See 7 C.F.R. § 2165. ASCS supervises and works through county committees elected by farmers in each state, pursuant to 16 U.S.C. § 590h(b). State Committees establish the policies for program operations within the State to achieve the Administration's program objectives.

 3. The Farmers Home Administration (FmHA) is also an agency within the Department of Agriculture. It is responsible for loan and grant and other assistance programs for the benefit of rural areas, including assistance authorized under the Consolidated Farm and Rural Development Act, 7 U.S.C. §§ 1921 et seq.

 4. FmHA has a National Office in Washington, D.C., 42 State Offices, some serving more than one state, and approximately 1750 local County Offices. Each State Office is under the supervision of a State Director who is responsible to the FmHA Administrator, for FmHA programs in one or more states, in accordance with established policies and delegations of authority. See 7 C.F.R. § 1800.22.

 5. The testimony of Mr. Victor Senechel, Acting Administrator of ASCS, and Mr. Harold Gross, Assistant to the Secretary of Agriculture for Personnel, indicated that both the FmHA State Directors and the ASCS State Executive Directors, exercise considerable control over the implementation of the administration's agricultural program policies at the state and local level, and, thereby, insure either the success or failure of the programs. This fact was corroborated by statements of three terminated employees, Penrose Hallowell, Frank H. Pope, and Gilbert L. French, who testified as to their budgetary authority and their distribution of millions of dollars in a state program. Each State Director supervised a substantial staff which numbered approximately 100 state-wide. Each director acted as a public speaker and educator regarding the administration's programs. The director thereby served as the administration's pipeline and advocate at the state and the local level.

 6. The positions of FmHA State Directors and ASCS State Executive Directors have been designated by the United States Civil Service Commission as "Schedule A" in the "excepted service", *fn3" pursuant to 5 U.S.C. § 3302 and 5 C.F.R. §§ 6.2, 213.3101 et seq. The three schedules in the "excepted service" are defined as follows:

 
Schedule A. Positions other than those of a confidential or policy-determining character for which it is not practicable to examine shall be listed in Schedule A.
 
Schedule B. Positions other than those of a confidential or policy-determining character for which it is not practicable to hold a competitive examination shall be listed in Schedule B. Appointments to these positions shall be subject to such noncompetitive examination as may be prescribed by the Commission.
 
Schedule C. Positions of a confidential or policy-determining character shall be ...

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