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LATINSKY v. ENGELEITER

September 21, 1990

Martin LATINSKY, Plaintiff,
v.
Susan ENGELEITER, et al., Defendants



The opinion of the court was delivered by: HARRIS

 STANLEY S. HARRIS, UNITED STATES DISTRICT JUDGE

 This matter is before the Court on plaintiff's motion for a preliminary injunction and defendants' motion to dismiss. Upon review of both motions, the parties' oppositions, and the entire record, the Court grants defendants' motion to dismiss and denies plaintiff's motion as moot.

 Background

 Although specifics are in dispute, the basic facts in this case are relatively clear. Latinsky was employed by the Small Business Administration (SBA) as a senior staff attorney. He was a Schedule A, nonpreference excepted service employee in the Disaster Assistance Division of the SBA. At the time he was hired, in August of 1985, he signed a "Statement of Understanding." (See Defendants' Combined Motion in Opposition to Plaintiff's Motion for Preliminary Injunction and Motion To Dismiss, Attachment 1 to Affidavit of Allan Hoberman.) It stated that Latinsky understood that his employment with the Disaster Assistance Division of the SBA was of a temporary nature, that he would not be entitled to the usual life and health insurance benefits, and that his employment could be terminated at any time without a two-week notice.

 Until the fall of 1989, he was stationed at the SBA Area 1 Disaster Office in Fair Lawn, New Jersey. In September 1989, plaintiff received a letter stating that the office was being moved, in toto, to Niagara Falls, New York, on or before November 13, 1989. Because plaintiff had Reduction in Force (RIF) rights, he was told that he could either transfer to New York along with the office, or he would be terminated through adverse action procedures. (See Plaintiff's Motion for a Preliminary Injunction, Exhibit A.) Plaintiff opted to not transfer and to be separated from federal service through adverse action procedures. Id. Before he could be separated, Hurricane Hugo hit, creating a need for attorneys in the U.S. Virgin Islands. Latinsky was given an opportunity to move to the U.S. Virgin Islands on a temporary basis. For reasons which are in dispute, Carl Jordan, Director, Disaster Area 1, Niagara Falls, flew to the Virgin Islands and had a meeting with Latinsky and Marilyn Bogue, Deputy Area Director. *fn1" At that meeting Jordan notified Latinsky that he was going to be terminated. Thus, on March 17, 1990, five years after he was hired, he was terminated without notice for alleged misconduct. Plaintiff asked Jordan to reconsider; his request was denied. Plaintiff then tried to contact Bernard Kulik, Deputy Associate Administrator, Disaster Assistance Division, and asked to be reinstated. He made several unsuccessful calls and then wrote him on April 12, 1990. Kulik did not respond.

 Discussion

 Latinsky claims that he was wrongfully discharged in violation of his First and Fifth Amendment rights, and that he was improperly denied adverse action procedures.

 Plaintiff argues that he is not a temporary excepted service employee, but a permanent one. He points to the fact that he has health benefits, life insurance benefits, and other such perks. *fn2" He provides the Court with an affidavit of the former Area Counsel for the SBA, Robert Weiss, who states that although Latinsky was a temporary attorney, subject to furlough during periods of low disaster activity, he should have been moved to a "cadre" status which was more permanent, and in fact, he was told that Latinsky had the same rights as cadre attorneys. Finally, Latinsky points to the September 1989 notice advising him of the adverse action procedures when he elected not to move with the office.

 It is clear that "no provision of the CSRA [Civil Service Reform Act of 1978] gives nonpreference members of the excepted service the right to administrative or judicial review of suspension for misconduct." United States v. Fausto, 484 U.S. 439, 108 S. Ct. 668, 671, 98 L. Ed. 2d 830 (1988). Chapter 75 of the Act, upon which plaintiff relies, governs adverse actions taken against employees for "efficiency of service," which includes dismissal for misconduct. Id. 108 S. Ct. at 672. It specifically excludes nonpreference excepted employees. Id. See also 5 U.S.C. § 7511(a)(1). Excepted service employees are generally considered at will employees, and thus are not given the same sort of protections given to federal employees in the competitive service. Sullivan v. Stark, 808 F.2d 737 (10th Cir. 1987). See also Garrow v. Gramm, 272 U.S. App. D.C. 249, 856 F.2d 203, 205 (D.C. Cir. 1988) (stating that under Chapter 75 a non-veteran, excepted service attorney "may be dismissed without cause, without prior notice, and without a termination hearing or an opportunity to appeal the decision.") However, § 7511(c) allows the Office of Personnel Management (OPM) to apply the protective provisions of this chapter to any position or group of positions excepted from competitive service by regulation of the Office. 5 U.S.C. § 7511(c).

 Plaintiff claims that defendants' conduct and representations have created a legitimate expectation of continued employment and job security protected by the OPM's adverse action procedures; thus, he contends he is entitled to administrative and judicial review.

 The SBA has established grievance procedures which are set forth in the SBA's Office of Personnel Standard Operating Procedures (SOP). Disciplinary and adverse actions are covered by SOP 37 71 1. (See Defendants' Notice to the Court.) These procedures provide for the presenting and consideration of certain employee grievances on decisions, actions, or conditions relating to their employment that they believe to be arbitrary or unjust. Under the SOP a current or former employee of the SBA for whom a remedy can be provided may file a grievance, that is, a request relating to the problem, and request relief. However, the term "grievance" is limited. Paragraph 4(c) sets forth matters which are excluded under the grievance procedures. Concerns or dissatisfactions over "the termination of temporary employment, or the separation of non-veterans in the excepted service" are specifically excepted. Id. at 4(c)(15). Accordingly, regardless of whether plaintiff is a temporary excepted service employee or a permanent excepted service employee, he does not have rights created by the Office of Personnel of the SBA which provide for grievance proceedings for his termination. Accordingly, plaintiff's claim that the SBA acted arbitrarily and in violation of its process is dismissed.

 Remaining are plaintiff's claims that defendants' actions violated his First and Fifth Amendment rights to due process and freedom of speech.

 Plaintiff's claim that his longstanding employment and the September 1989 letter established a property interest in his job such that he could not be terminated without due process is without merit. As the Court of Appeals for the District of Columbia Circuit pointed out in Garrow v. Gramm, 856 F.2d at 206, a government employee has yet to be held to have a protected property interest in employment unless language qualifying discharge for "cause" or comparable reasons are present. *fn3" A property "interest can only be created by understandings, statutes, or rules that secure certain benefits and that support claims of entitlement to those benefits." Id. at 207 (citing Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972).) *fn4" Plaintiff's September 1989 RIF letter does not give ...


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