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.
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.
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).)
Plaintiff's September 1989 RIF letter does not give him such an interest. It only gives him an interest in due process proceedings should he be terminated as a result of the transfer, not as a result of later conduct. Accordingly, plaintiff's due process claim must also be dismissed.
As for plaintiff's claim that his termination violated his First Amendment right to freedom of speech, the Court disagrees. "[A] public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment." Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 1686, 75 L. Ed. 2d 708 (1983). However, the government also has an interest in promoting the efficiency of public service. These two interests must be balanced. Id. 103 S. Ct. at 1686, 1687. See also Pickering v. Board of Educ., 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). Our Court of Appeals quite succinctly restated the test for such balancing:
[Plaintiff's] First Amendment claim is governed by Pickering v. Board of Educ., [cite omitted], and its offspring. As later elaborated by the Supreme Court, the Pickering cause of action has four elements. First, the public employee must have been speaking on a matter of public concern. If the speech is not of public concern, "it is unnecessary . . . to scrutinize the reasons for [the] discharge," Connick v. Myers, 461 U.S. 138, 146, 103 S. Ct. 1684, 1690, 75 L. Ed. 2d 708 (1983), at least "absent the most unusual circumstances." Id. at 147, 103 S. Ct. at 1690. Second, the court must "balance" the interests of the employee, "as a citizen, in commenting upon matters of public interest and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S. Ct. at 1734. Third, the employee must prove that his speech was a substantial or motivating factor in his discharge. Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 576, 50 L. Ed. 2d 471 (1977). Finally, the government employer must be given an opportunity to prove that it would have reached the same decision even absent the protected conduct. Id.