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April 10, 1989

JOSEPH STEPPE, et al., Plaintiffs,
GOVERNOR, United States Soldiers' and Airmen's Home, Defendant

Stanley Sporkin, United States District Judge.

The opinion of the court was delivered by: SPORKIN


 Plaintiffs brought this action under 28 U.S.C. § 1331 and § 1346 (a) and (b), alleging that defendant Governor of the Soldiers' and Airmen's Home ("Home") wrongfully discharged the plaintiffs from their position as employees of the Home. At oral argument plaintiffs indicated they were relying on the Administrative Procedure Act ("APA") as an additional basis for conferring jurisdiction on this court. The APA provides judicial review to "any person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. § 702. *fn1"

 It is well established that where Congress intends to preclude judicial review of constitutional claims, including those involving the employment rights of government employees, its intent to do so must be clear. Webster v. Doe, 486 U.S. 592, 56 U.S.L.W. 4568, 4571, 100 L. Ed. 2d 632, 108 S. Ct. 2047 (1988) (citing Johnson v. Robison, 415 U.S. 361, 367, 39 L. Ed. 2d 389, 94 S. Ct. 1160 (1974)). In Webster, the Supreme Court held that the National Security Act, which gives the Director of the CIA wide discretion in deciding whether to terminate a CIA employee, does not preclude the review of related constitutional claims under the APA. Id.

 The plaintiffs are former employees of the United States Soldiers' and Airmen's Home ("Home") who were discharged in early 1986 for alleged illegal drug activity. Plaintiffs contend that their dismissal was in violation of their constitutional rights under the Fifth Amendment and the collective bargaining agreement between the Home and the Federal Employees and Transportation Workers, Local Union 960 ("Union").

 Plaintiffs' complaint is multifaceted. In essence, their allegations are geared to two principal causes of action. First, plaintiffs claim they were deprived of property interests without due process of law when they were discharged from long standing positions at the Home without having the right to a hearing where they would be able to exercise their constitutionally mandated right to confront the witnesses against them. Second, in an amended complaint, plaintiffs allege that defendant failed to honor and implement plaintiffs' hearing rights under a negotiated agreement with plaintiffs collective bargaining agent and the Home.

 Defendant contends that as excepted service non-preference employees, plaintiffs were not entitled to a hearing by the Home, but to only rights given to them under the collective bargaining agreement. The defendant further contends that the right to arbitration provided for under the agreement lapsed when the Union did not request arbitration in a timely manner.

 While plaintiffs seek various kinds of relief including reinstatement and money damages, I believe that this court has the authority only to order a substantive hearing on the serious but unproven charges defendant made against the plaintiffs. Such a hearing under the facts of this case is mandated by the Constitution, the Administrative Procedure Act, and the collective bargaining agreement between the Home and the Union.

 As is all too often the case in these situations, the government claims that this court is without jurisdiction to consider any of plaintiffs' claims. Since plaintiffs are considered excepted service non-preference employees, the government contends that plaintiffs have no federally protected employment rights. This court does not agree with defendant's contention that these plaintiffs, as excepted service non-preference employees, are in effect "at will" employees of the government. While plaintiffs were all employed in low paying, low level support positions, they held those positions for many years. Indeed, all but one of the plaintiffs held their positions for at least ten years and had started work at the Home prior to the passage of the Civil Service Reform Act.

 It is my view that as federal employees each day of service entitled them to certain cumulative benefits. As time passed, their property interest in their jobs became more established and less vulnerable to an arbitrary and capricious action by the government. Thus it would seem that prior to an involuntary dismissal from their positions these long standing government employees should be allowed some form of confrontational hearing, at the minimum a post-termination hearing. Such a hearing requirement would be satisfied by an arbitration proceeding provided under the collective bargaining agreement pertaining to the plaintiffs in this case.


 This court conducted a number of evidentiary hearings to determine the facts. From the record, it is clear all of the plaintiffs were considered good employees and had no prior disciplinary complaints or actions taken against them while working at the Home. All were long time employees preforming unskilled but vital tasks for the Home.

 Plaintiff Joseph Steppe was a night administrator when he was removed from the Home. He started work at the Home in January of 1977, as a temporary grounds keeper. Through his nine years of employment at the Home, up until the immediate incident, Steppe had no disciplinary problems, and had consistently received favorable reviews of his work.

 Michael Little started work at the Home in 1973, in the housekeeping department. While employed at the Home, Little advanced to the position of ambulance driver, which he held at the time of his termination.

 Charlie Ward started at the Home in 1970 in the housekeeping department. Ward received a number of promotions and eventually became a tractor operator, the position he held at the time of his termination. Throughout his eighteen years at the Home Ward received good ...

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