THE COURT GRANTS DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, IN PART, BECAUSE IT FINDS THAT PLAINTIFFS HAVE NOT ALLEGED DEPRIVATION OF A LEGITIMATE PROPERTY INTEREST.
HOWEVER, THE COURT DENIED SUMMARY JUDGMENT AS TO THE QUESTION OF DEPRIVATION OF A LIBERTY INTEREST
It is well established that to "have a property interest in a benefit, a person must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). See also Perry v. Sindermann, 408 U.S. 593, 602-02, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972). Plaintiffs here have not demonstrated such an entitlement.
Plaintiffs were all probationary employees at the time of their termination. Probationary employees are specifically excluded from the statutory sections protecting career government employees from dismissal for any reason but for "cause." See 5 U.S.C. §§ 7511(a) (1) (A), 7513. Thus, plaintiffs as conditional employees were subject to dismissal for less than just cause. It is well established that probationary employees may be subject to dismissal for less than just cause. Accordingly, the Court finds that plaintiffs have not stated a constitutional claim because it is well established that probationary employees that may be dismissed for less than just cause do not have a property interest in continued employment that rises to a Constitutional level. See Mazaleski v. Treusdell, 183 U.S. App. D.C. 182, 562 F.2d 701, 710 n.23 (D.C. Cir. 1977). Cf. Arnett v. Kennedy, 416 U.S. 134, 167 n.2, 40 L. Ed. 2d 15, 94 S. Ct. 1633 (Powell, J. and Blackmun, J., concurring) (1974).
Based on this alone, the Court will grant Defendants' Motion for Summary Judgment as to plaintiffs' claim that they have been deprived of a property interest without due process of law.
The Court shall defer decision on plaintiffs' claim of deprivation of a liberty interest until after it has heard oral argument. At oral argument the plaintiffs will be given the opportunity to convince the Court that the injuries they allege, -- stigmatization, injury to their reputations, and, damage to their employment opportunities -- are of a constitutional dimension. The Court is also seeking clarification of the specific injuries alleged and guidance as to whether they present genuine issues of fact.
An order consistent with the foregoing will be issued of even date herewith.
For the reason set forth in the Memorandum Opinion in the above-captioned action, issued of even date herewith, it is, by the Court, this 16th day of November, 1982, hereby,
ORDERED that Plaintiff George Wygards claim is dismissed without prejudice; and it is further
ORDERED that Defendants' Motion to Dismiss is denied; and it is further,
ORDERED that Defendants' Motion for Summary Judgment is granted in part as to plaintiffs' alleged property interests; and it is further,
ORDERED that the Court will hear oral argument on Defendant's Motion for Summary Judgment as to plaintiffs' alleged liberty interests on December 1, 1982 at 10:30; and it is further
ORDERED that the plaintiffs shall submit a supplemental memorandum addressing the questions propounded by the Court in its Opinion by November 24, 1982; and it is further,
ORDERED that the defendants shall submit a supplemental memorandum in response to plaintiffs' memorandum by November 29, 1982.