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July 28, 1987

Morris Arakawa, et al., Plaintiffs,
Ronald Reagan, President of the United States, et al., Defendants

The opinion of the court was delivered by: HARRIS

 Stanley S. Harris, United States District Judge

 This case involves the claims of 38 former air traffic controllers, all of whom were discharged by the Federal Aviation Administration (FAA) in 1981 because of their alleged involvement in an illegal strike against the Government of the United States. The matter is now before the Court on defendants' motion to dismiss, the plaintiffs' later-filed motion to join additional plaintiffs. Upon consideration of the defendants' motion, plaintiffs' opposition thereto, defendants' reply, and the entire record, the Court concludes that defendants' motion should be granted in part and denied in part. The Court also concludes that plaintiffs' motion should be denied.


 On August 3, 1981, after several months of unsuccessful efforts to reach agreement with the FAA on a collective bargaining agreement, the Professional Air Traffic Controllers Organization (PATCO) called on its members to strike. Over 70 percent of the nation's air traffic controllers answered the call, causing a significant disruption to private and commercial aviation in the United States. Professional Air Traffic Controllers Organization v. Federal Labor Relations Authority, 222 U.S. App. D.C. 97, 685 F.2d 547, 551 (D.C. Cir. 1982).

 Of the 38 plaintiffs, 37 appealed their dismissals to the Merit Systems Protection Board (MSPB), as authorized by 5 U.S.C. § 7513(d). Each of the dismissals was upheld. *fn1" Of those who appealed to the MSPB, 31 petitioned for review in the United States Court of Appeals for the Federal Circuit. *fn2" On February 24, 1983, the Federal Circuit, faced with more than 225 petitions for review by former air traffic controllers and aware of more than 1,500 other cases still pending before the MSPB, issued an order staying review in all but seven cases then before the court. See In re Air Traffic Controllers Litigation, slip op. at 3 (Fed. Cir. Feb. 24, 1983). In doing so, the Federal Circuit sought to "determine the common controlling legal issues as soon as possible and thus avoid repetitious and unnecessary decision of the same issues in many cases." Id. at 2.

 On December 10, 1984, the Clerk of the Federal Circuit notified all those whose petitions had been stayed that disposition of the "lead cases," including Supreme Court review, was complete, and directed those who still wished to seek review to file a renewed petition before January 10, 1985. *fn3" The Clerk's notice reminded the petitioners of "the impropriety of frivolous appeals" and specified that "any renewed petition must include a statement of the issues relied on and not decided in any of the 'Lead Cases'." Of the 31 plaintiffs in this case who had filed petitions for review, ten submitted renewed petitions. *fn4" Those petitions apparently are pending before the Federal Circuit.

 In addition to seeking reinstatement through reversal of their discharges, at least six plaintiffs have sought re-employment with the FAA. However, in reliance on a Presidential Directive, see 17 Weekly Comp. Pres. Doc. 1364 (Dec. 9, 1981), the Office of Personnel Management (OPM) has determined that no air traffic controller discharged for illegal strike participation will be eligible for re-employment with the FAA. *fn5"

 On November 1, 1985, plaintiffs filed a 13-count complaint, naming President Reagan, the FAA, the OPM, the MSPB, and the Federal Circuit as defendants. *fn6" The counts include constitutional claims under the First and Fifth Amendments to the United States Constitution (counts one and two), common law tort claims, presumably under the Federal Tort Claims Act, ch. 753, title I, 60 Stat. 812, 842-47 (1946) (codified, as amended, as scattered sections of Title 28 of the United States Code) (counts three, four, five, nine, ten, eleven, and thirteen), unfair labor practice claims (counts six, seven, and eight), and a claim that defendants conspired to deprive plaintiffs of their civil rights (count twelve). Plaintiffs seek reinstatement with backpay, benefits, and necessary retraining, $1 million each in compensatory damages, and $1 million each in punitive damages. Defendants move to dismiss.


 I. Jurisdictional Issues

 A. Jurisdiction To Review Decisions of the MSPB and the Federal Circuit

 Plaintiffs allege that the MSPB and the Federal Circuit have denied them due process by wrongfully consolidating their individual cases with those of other former air traffic controllers, by limiting their opportunities for adversarial hearings, and by failing to "recognize" issues that the plaintiffs believe are dispositive. Without addressing the merits of plaintiffs' objections, the Court concludes that the complaint must be dismissed with respect to the ...

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