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November 17, 1982

DONALD S. GEMMELL, et al., Plaintiffs,

The opinion of the court was delivered by: RICHEY


 This matter is before the Court on Defendant's Motion to Dismiss or in the Alternative for Summary Judgment and Plaintiff's Opposition thereto. For the reasons set forth herein, the Court will deny Defendants' Motion to Dismiss and grant Defendant's Motion for Summary Judgment in part. The Court will defer decision on Defendant's Motion as it related to plaintiffs' alleged liberty interest until after oral argument.


 Plaintiffs are eight (8) individuals who were employed as air traffic controllers at the time of the nationwide strike of the Professional Air Traffic Controller Organization ("PATCO"). *fn1" As a result of their alleged participation in the PATCO strike they were terminated. Plaintiffs claim that because they were never given an opportunity to demonstrate that they had not in fact struck, they have been summarily deprived of liberty and property interests in violation of due process. Plaintiffs seek reinstatement with backpay and seniority rights, declaratory relief and an order awarding $1000 in both punitive and compensatory damages to each plaintiff.

 Defendant argues that the Court should dismiss this case for lack of subject matter jurisdiction because plaintiffs failed to exhaust the administrative remedies available to them. In the alternative, defendant alleges that if the Court finds that it does have jurisdiction, summary judgment is in order because plaintiffs have not alleged deprivation of a legitimate liberty or property interest.



 Courts have long held that before a litigant seeks judicial relief he should exhaust his administrative remedies. McKart v. United States, 395 U.S. 185, 23 L. Ed. 2d 194, 89 S. Ct. 1657 (1969); Myers v. Bethlehem Shipbuilding Co., 303 U.S. 41, 82 L. Ed. 638, 58 S. Ct. 459 (1938). However, it is also well established that the exhaustion requirement "is not to be applied inflexibly." McGee v. United States, 402 U.S. 479, 483, 29 L. Ed. 2d 47, 91 S. Ct. 1565 (1971). One of the primary situations in which a plaintiff should not be forced to exhaust his administrative remedies is where to do so would be futile. See e.g., Ezratty v. Puerto Rico, 648 F.2d 770, 774 (1st Cir. 1981); Natural Resources Defense Council Inc. v. Train, 166 U.S. App. D.C. 312, 510 F.2d 692, 703 (D.C. Cir. 1975). The Court finds that this is such a case.

 Normally, a government employee's rights when faced with an adverse employment decision are governed by the Civil Service Reform Act of 1978 ("CSRA"). The CSRA prescribes a comprehensive statutory scheme for dealing with federal employee relations. Under that scheme, employees may challenge employment actions taken against them before the Merit Systems Protection Board ("MSPB"). 5 U.S.C. § 7701. Thereafter, if the employee is dissatisfied with the decision of the MSPB, he may appeal to the U.S. Court of Appeals for the Federal Circuit. 5 U.S.C. § 7703.

 Probationary employees, however, are not considered to be "employees" within the meaning of the CSRA. 5 U.S.C. § 7511(a) (1) (A). Thus, probationary employees are exempted from the statutory scheme provided by Congress and the safeguards that it provides. They are, however, given limited appeal rights by regulation. Probationary employees may appeal the employment decision to discharge them, if they allege that their termination was based on marital status or partisan political motives. 5 C.F.R. § 315.806(b). Additionally, such employees may challenge terminations resulting from conditions arising before their appointment where it is alleged that there was procedural error. 5 C.F.R. §§ 315.805, 315.806(c). An employee may also allege that his termination was discriminatory, if this claim is made in conjunction with one of the two prior allegations at 5 C.F.R. §§ 315.806(b) and (c). 5 C.F.R. 315.806(d). This limited right to appeal however, is of little help to plaintiffs here.

 All of the plaintiffs in this case have filed appeals with the MSPB. The Board rejected each of the plaintiffs' claims with the exception of George Wygand, not on the merits, but because the complaints did not fit within the narrow categories within which regulations provide that the MSPB will hear and determine the allegations of probationary employees. *fn2"

 Thus, the plaintiffs were not given the opportunity to have their claims heard on the merits by the MSPB. Consequently, the U.S. Court of Appeals for the Federal Circuit will not hear the merits of plaintiffs' case on appeal and forcing plaintiffs to follow the requisite administrative appeal process would be a mere exercise in futility. If this Court refuses to hear plaintiffs' constitutional claims there will be no forum available to them. Thus, the Court finds that it is not deprived of subject matter jurisdiction by virtue of the plaintiffs' failure to ...

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