coupled with generally disrespectful behavior. Twist insists these meetings and other demands of suspect supervisors involved were in retaliation to his conspiracy allegation.
Defendant recognizes the reason for termination is disputed but seeks dismissal on the ground that as a matter of law Twist did not engage in protected speech. As a government employee speaking in an employment context, to obtain first amendment protection Twist must ultimately prove both that his speech was on a matter of public concern and that his interest in speaking outweighed the government's interest, as an employer, "in the effective and efficient fulfillment of its responsibilities to the public." Connick v. Myers, 461 U.S. 138, 150, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983).
Here the involved speech implicated a matter of public concern. Defendant suggests that his interest in the proper exercise of his prosecutorial responsibilities outweighed any contrary interest Twist may have had in speaking at the time and in the manner he chose. Whether Twist's speech threatened to impede the investigation by prejudicing the judge, endangered any grant of immunity that was being considered, lacked substance, was inappropriate procedurally, avoided established channels, or threatened substantial disruption of working relationships within the Antitrust Division are all fact questions to be explored at a later date.
Given a motion to dismiss the Court is limited to ruling on the sufficiency of the bare allegations in the complaint. The claim, as amplified on the motion, recites that Twist reasonably believed his superiors were conspiring to obstruct justice and that he brought this belief to the attention of appropriate Department of Justice officials, and that when they took no action he informed the empanelling judge and the United States Attorney. These allegations are minimally sufficient to establish the arguably protected nature of the speech. The first amendment claim must therefore be held for future proceedings.
Twist also claims his termination violated his fifth amendment due process rights because he enjoyed a property interest in his position which barred termination except for good cause after pre-termination notice and a hearing; he claims these protections were not provided. Such a property interest is implicated only if Twist had a "legitimate claim of entitlement" to his position based on an independent rule or understanding of law. Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). Twist fails this test because he was an "excepted service" employee under 5 U.S.C. § 2103(a) (1982), see 5 C.F.R. § 213.3102(d) (1986). Excepted service employees who are not veterans lack any statutory entitlement to their position that could generate a protected property interest. See, e.g., Doe v. Department of Justice, 243 U.S. App. D.C. 354, 753 F.2d 1092, 1097 n. 4, 1100 & n. 8 (D.C. Cir. 1985). Only "competitive service" employees as defined by 5 U.S.C. § 2102(a)(1) (1982) possess a protected property interest as they are shielded from removal except for cause under 5 U.S.C. § 7513 (1982).
Twist argues that one of the "prohibited personnel practices" established by the Civil Service Reform Act of 1978 and codified at 5 U.S.C. 2302(b)(10) (1982) grants him a property interest in his excepted service position. That provision in part prohibits discrimination against an employee "on the basis of conduct which does not adversely affect the performance of the employee. . . ." It has two effects. Substantively, it makes clear that where a competitive service employee is removed for cause pursuant to 5 U.S.C. § 7513, the ground for removal must have a rational nexus with the employee's duties. Merritt v. Department of Justice, 6 M.S.P.R. 493, 508 (1981). Jurisdictionally, it allows competitive service employees and most excepted service employees (including Twist), see 5 U.S.C. 2302(a)(2) (1982), to complain under 5 U.S.C. § 1206 (1982) of prohibited personnel practices to the Office of Special Counsel. Merritt, supra, 6 M.S.P.R. at 506-08. It does not confer any form of property interest in a government position.
All claims for relief in the complaint will be dismissed except the first amendment claim. An appropriate Order is filed herewith.
Upon consideration of defendant's motion to dismiss, plaintiff's opposition, defendant's reply, the various exhibits filed and the entire record herein, for the reasons stated in an accompanying memorandum filed herewith, it is hereby
ORDERED that defendant's motion is granted in part; and it is further
ORDERED that all claims for relief in the complaint are dismissed except the first amendment claim, which defendant shall answer within the time allowed by the Federal Rules of Civil Procedure; and it is further
ORDERED that a scheduling conference is set for April 29, 1987, at 9:00 a.m., in Courtroom No. 6.