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CHRISTIAN v. NEW YORK STATE DOL

July 24, 1972

Jean CHRISTIAN and Victor L. Green, individually and on behalf of all others similarly situated, Plaintiffs,
v.
NEW YORK STATE DEPARTMENT OF LABOR, DIVISION OF EMPLOYMENT, et al., Defendants



The opinion of the court was delivered by: BAUMAN

BAUMAN, District Judge.

This action tests the constitutionality of the Federal statutory scheme providing unemployment compensation benefits for former Federal employees as it is applied to those who at the time of termination of their Federal employment were in a probationary status. The principal issue is whether the provisions of 5 U.S.C. § 8506 *fn1" and the regulations promulgated thereunder, which make the findings of the former Federal employer as to the reasons for termination binding and conclusive upon the State agency in its determination of eligibility for unemployment compensation benefits, violate the Due Process Clause of the Fifth and Fourteenth Amendments and the Equal Protection Clause of the Fourteenth Amendment.

This case came on before Judge Frankel for declaratory relief, injunctive relief and a writ of mandamus. As the constitutionality of a Federal statute was seriously in doubt, Judge Frankel invoked a Three-Judge Court pursuant to 28 U.S.C. § 2282.

 I.

 Plaintiff Jean Christian is a resident of Brooklyn, New York and a former employee of the United States Post Office *fn2" in Brooklyn. Plaintiff Victor L. Green is a resident of the Bronx, New York and a former employee of the United States Department of The Treasury, Bureau of Customs, based in New York. Both plaintiffs were probationary employees when their employment was terminated. Plaintiff Christian was employed by the Post Office Department from April 4, 1970 to October 2, 1970 and was discharged because of an unsatisfactory attendance record. Plaintiff Green was a sky marshal for the Bureau of Customs from December 24, 1970 to December 18, 1971, when he was discharged for drinking an alcoholic beverage within twenty-four hours of flying. Neither plaintiff was given a prior hearing nor was one required.

 Title 5 U.S.C. § 8501 et seq. *fn3" authorizes the United States Department of Labor to enter into agreements with State agencies to provide unemployment compensation for former Federal employees under the Unemployment Compensation for Federal Employees (UCFE) Program. The statutory scheme includes a provision that the written statement of the former Federal employer as to the reasons for termination of an employee are binding and conclusive on the State agency which administers the UCFE program. 5 U.S.C. § 8506. Such an agreement was entered into by the Secretary of Labor and the State of New York. Both plaintiffs filed claims for unemployment compensation with the New York State Department of Labor which is the administering agency. After proceeding through the appropriate State procedures each plaintiff received a final determination denying him benefits based on the written, conclusive statements of his former Federal employer.

 As probationary employees, neither plaintiff was entitled to a hearing before his Federal agency employer prior to termination of employment. *fn4" Therefore, neither had an opportunity to contest, avoid or rebut the written reasons for his dismissal. Because the Federal findings were binding on the State agency, plaintiffs claim that they have been denied unemployment compensation benefits without due process of law and in violation of their rights to equal protection of the laws.

 II.

 Prior to addressing the constitutional questions, this Court must face the claim *fn5" that the interpretation of 5 U.S.C. § 8506 set forth in Smith v. District Unemployment Compensation Board, 140 U.S. App. D.C. 361, 435 F.2d 433 (1970) is the correct one. If it is, mandamus will lie against the Federal officials directing them to provide hearings, upon request, to probationary employees who contest the reasons given for their termination.

 We refuse to follow the construction of 5 U.S.C. § 8506 set forth in Smith, supra. That Court found --

 
"There is no reasonable basis for supposing that whereas Congress deliberately insisted on opportunity of hearing for employees generally, it deliberately established a no-hearing enclave for a relatively small group of Federal employees . . .." Supra 435 F.2d at 438.

 In reaching that conclusion, we think that the Court ignored the structure of the Federal Civil Service Laws. Since the original Civil Service Act of 1883, Congress has made a distinction between probationary and permanent Government employees. *fn6" Probationary employees are not entitled to the full range of hearing rights to which permanent employees are entitled upon dismissal. *fn7" This distinction between probationary and permanent Government employees has been recognized by the Courts on many occasions *fn8" and Congress surely was aware of it in 1954 when it passed the legislation creating the UCFE Program.

 Certainly Congress intended that Federal employers should have an unfettered right to terminate probationary employees. No termination hearing is prescribed or required nor should it be. What Smith, supra, attempts is to legislate judicially a hearing not now required by statute which would mandate precisely the type of hearing not now required for discharge. Such a hearing, as a practical matter, would limit the Government in the discharge of probationary employees to an extent never previously contemplated by the Congress.

 Additionally, the idea that the use of the word "findings" in 5 U.S.C. § 8506 means "findings after a hearing" is a tortured, strained and unnecessary interpretation. We hold that the word "findings" in 5 U.S.C. § 8506 means only the written statement of reasons for termination sent by the Federal employer to the State agency ...


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