lengthy experience with the Department's programs. Mr. Gross participated in overseeing the review of both the agencies' positions and received comments from officials of the previous administration, civil rights and public groups, members of Congress, and State governors.
9. Because the FmHA and ASCS State Directorships are positions excepted from the competitive service, they were viewed historically as patronage jobs. Thus, it was generally understood and expected that the incumbents would be replaced by individuals who supported the policies and programs of the new administration.
10. It was the desire of the Department of Agriculture to simplify the proceedings by avoiding problems of veterans preference. The termination of non-veterans, who would have no right of administrative appeals, occurred first.
11. Although all incumbents, except one, were appointed during the Nixon-Ford administrations, the testimony was uncontroverted that the Carter administration did not know in fact to which political party the incumbents belonged, nor did officials at the Department of Agriculture, at any time, suggest or coerce the incumbents to support the Democratic Party in return for retaining their jobs.
Conclusions of Law
1. The Civil Service Commission is not properly before this Court because it is not a suable entity eo nomine. Blackmar v. Guerre, 342 U.S. 512, 515, 96 L. Ed. 534, 72 S. Ct. 410 (1952).
2. Furthermore, the Court lacks subject matter jurisdiction over the controversy with respect to the issues addressed to the Commission. The Commission has not taken any action to remove any positions from Schedule A. Therefore, plaintiff has failed to present issues which can be "pressed before the Court with the clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaced situation embracing conflicting and demanding interests . . ." Flast v. Cohen, 392 U.S. 83, 95-97, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968). In such circumstances, the Court is not presented with a case or controversy sufficient to satisfy the jurisdictional requirements of Article III of the Constitution. See International Longshoremen's and Warehousemen's Union v. Boyd, 347 U.S. 222, 98 L. Ed. 650, 74 S. Ct. 447 (1954).
3. Plaintiff has failed to demonstrate that the terminated employees have a statutory or constitutional right to a statement of reasons and a hearing upon dismissal.
4. In order to establish a right to such procedural due process, plaintiff must show that such a right is conferred by statute, by regulation, by the terms of employment, or that such a right is afforded under the Fifth Amendment to the Constitution because of a property interest in the job.
5. An employee in the excepted service, however, is simply not entitled to the benefits accorded those in the competitive service under the Lloyd-LaFollette Act, 5 U.S.C. § 7501. Chollar v. United States, 130 Ct.Cl. 338, 126 F. Supp. 448 (1954). Specifically, an employee in the excepted service, who is not a veteran, has no statutory or regulatory right to a statement of reasons, or adverse action appeal rights. 5 C.F.R. § 752.103(a)(6); see also Vitarelli v. Seaton, 359 U.S. 535, 539, 3 L. Ed. 2d 1012, 79 S. Ct. 968 (1959).
6. In light of the nature and terms of the employment, (e.g., the excepted service), and in view of the fact that the non-veterans are excepted from statutory provisions granting due process protections, there is no property right to continued employment under which constitutional protections could be invoked. Codd v. Velger, 429 U.S. 624, 97 S. Ct. 882, 884, 51 L. Ed. 2d 92 (1977); Board of Regents v. Roth, 408 U.S. 564, 576-578, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); Keim v. United States, 177 U.S. 290, 44 L. Ed. 774, 20 S. Ct. 574 (1900). Indeed, our own Court of Appeals has made it clear that:
[Determining] the employment relationship . . . specifically negates a reasonable prospect of continued employment which might otherwise give rise to a legitimate claim of entitlement requiring procedural due process protection.