The opinion of the court was delivered by: OBERDORFER
LOUIS F. OBERDORFER, UNITED STATES DISTRICT JUDGE
Plaintiff was employed as a Schedule A, Excepted Service Attorney at the Commodity Futures Trading Commission ("CFTC") from September 2, 1980 to September 16, 1986 when he was terminated for "insubordination." In his complaint filed on December 18, 1986, he alleged that he had a property interest in his continued employment with the Commission and that he was "deprived" of this interest without "due process" because he was not afforded pretermination notice and a hearing. Plaintiff asks that he be reinstated to his job and protected from any acts of reprisal by the defendant. Plaintiff filed a motion for summary judgment on January 30, 1987. The government filed a cross motion on March 28, 1987. A hearing was held on these motions on June 12, 1987. For the reasons discussed below, plaintiff's motion for summary judgment will be denied and the defendant's motion will be granted.
The Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (1978) ("the Act"), comprehensively revised the personnel procedures of federal agencies and redefined the rights of their employees. The Act specifies the circumstances under which agencies may remove employees or reduce them in grade and the procedural rights available to employees who are subject to such disciplinary action. Plaintiff was removed under Chapter 75 of the Act, 5 U.S.C. § 7501 et seq., which governs removals, suspensions, furloughs, and reductions in grade or pay other than removals or reductions in grade under Chapter 43.
Chapter 75 authorizes agencies to take adverse personnel actions against employees "only for such cause as will promote the efficiency of the service," 5 U.S.C. § 7513(a), and grants employees subject to such adverse action substantial procedural rights. See 5 U.S.C. §§ 7513(b), (d). However, employees in the excepted service who are not veterans are not classified as "employees" for the purposes of Chapter 75. It is undisputed, therefore, that plaintiff has been excluded by Congress from the grant of a property right in his job which is conferred on other employees by virtue of the provisions of Chapter 75. However, plaintiff here argues that despite the fact that Congress explicitly excluded excepted service employees from the procedural protections of Chapter 75, the Civil Service Reform Act nonetheless granted him a property right in his job. In support of this claim of entitlement, plaintiff points to the provisions of the Act which describe "prohibited personnel practices." In particular, 5 U.S.C. § 2302(b)(10) provides that
any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority . . . discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others.
Excepted service employees are one of the categories of employees covered by the "prohibited personnel practices" provisions of the Act. See 5 U.S.C. § 2302(a)(2)(B). If Mr. Garrow believes that he was discharged on the basis of conduct which did not adversely affect his performance as an employee, therefore, he is entitled to file a complaint with the Office of Special Counsel of the Merit Systems Protection Board under 5 U.S.C. § 1206.
Plaintiff's interpretation of Loudermill is not supported by the language of that decision. The Loudermill Court relied upon established precedent to reach the conclusion that an employee who was entitled by statute to retain his position "during good behavior and efficient service," and who could not be dismissed "except . . . for . . . misfeasance, malfeasance, or nonfeasance in office" had a protected property interest in his job. See 105 S. Ct. at 1491. Loudermill did not hold that any statute which has the effect of restricting in any manner the grounds upon which an employee could be discharged creates a property right. To the contrary, the Loudermill Court reaffirmed the decision in Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972), which held that
to have a property interest in a benefit, a person clearly 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.
The question presented in this case, therefore, is whether 5 U.S.C. § 2302(b)(10) grants the plaintiff a "legitimate claim of entitlement" to his job at the CFTC. An identical claim has recently been rejected by this Court in Twist v. Meese, (Civil Action No. 86-3220), where Judge Gesell held that
§ 2302(b)(10) does not address agency procedures in terminating employees. Rather that section is targeted at preventing individual agency employees from abusing their authority and is only one of many "prohibited personnel practices" defined under § 2302(b) which may be subject to complaint at the Office of Special Counsel pursuant to 5 U.S.C. § 1206 (1982). The section is broadly worded, prohibiting "discrimination for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others . . . ." It in no way grants employees a property interest in continued employment.
Plaintiff suggests that the decision in Twist v. Meese is incorrect because § 2302(b)(10) "restricts the grounds on which an employee, including an excepted service employee like plaintiff, can be terminated." See Plaintiff's Response to Reply of Defendant at 4-5. It is true that by prohibiting an agency employee from terminating another employee on the basis of conduct which is unrelated to work performance, § 2302(b)(10) does restrict the agency's discretion to engage in wholly irrational discharges. But it is clearly not the equivalent of a statute which provides employees with job tenure during "good behavior" or which provides that employees can only be terminated "for cause." The legislative history of § 2302(b)(10) suggests that it was intended to protect against discharges based on non work-related conduct and interests. See House Committee on Post Office and Civil Service, Mark-Up Session on H.R. 11280, 95th Cong., 2d Sess. 39-40 (June 21, 1978) (remarks of Representative Harris) (noting that § 2302(b)(10) "prohibit[s] discrimination against activities that have no bearing on one's job. Psychiatry, outside interests, a member of 'NOW' or 'Taxpayer's Alliance' or what have you.") quoted in Merritt v. Department of Justice, 6 ...