The opinion of the court was delivered by: HAIGHT
MEMORANDUM OPINION AND ORDER
On October 31, 1961 plaintiff Antonio Mareno entered on duty as a law assistant to the Honorable Scovel Richardson, a Judge of the United States Customs Court (redesignated in 1980 as the Court of International Trade). Insofar as the present record appears, Mr. Mareno served Judge Richardson honorably and effectively until March 30, 1982, when, regretably, Judge Richardson died. On April 28, 1982 defendant, the Honarable Edward D. Re, Chief Judge of the Court of International Trade, gave Mareno written notice that owing to Judge Richardson's death, Mareno would be "involuntarily separated from service on September 30, 1982," with the further proviso that if a successor judge entered on duty before that date, Mareno would be "involuntarily separated on the date the successor judge enters on duty." By order to show cause filed on September 29, 1982, Mareno sought a temporary restraining order and preliminary injunction preventing his discharge, alleging that Judge Re's act of termination violated Mareno's constitutional property and liberty interests. Judge Re had moved for summary judgment dismissing the complaint, on the grounds that no constitutional violations are demonstrated, and that, in the alternative, he is judicially immune from suit. A temporary restraining order was entered, and extended on defendant's consent, retaining Mareno in the employment of the Court until defendant's motion was decided.
Because it is apparent that Mareno has no viable basis for asserting a constitutionally protected property interest in his position at the Court of International Trade, I grant defendant's motion for summary judgment under Rule 65, F.R.Civ.P., vacate the restraining order, and dismiss the complaint with prejudice.
The existence vel non of a federal employee's property interest in his job depends upon the provisions of the pertinent statutes and regulations. Smith v. Lehman, 689 F.2d 342 (2d Cir. 1982). In the case at bar, Mareno's claim is sufficiently non-frivolous to create a basis for federal court jurisdiction pursuant to 28 U.S.C. § 1331. Hagans v. Lavine, 415 U.S. 528, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974); Smith v. Lehman, supra. Accordingly I turn to the pertinent statute and its subsequent implementation.
On September 9, 1959, the Congress amended 28 U.S.C. § 871 so that it thereafter read:
"The Customs Court may appoint a clerk, a chief deputy clerk, an assistant clerk, deputy clerks, and such deputies, assistants, and other employees as may be necessary for the effective dispatch of the business of the court, who shall be subject to removal by the court."
The legislative history accompanying this enactment makes it clear that Congress intended to resolve an anomaly whereby Customs Court employees, along among members of the judicial branch, were subject to the civil service laws administered by the executive branch. The pertinent House report reads as follows:
"Delete from the present Customs Court statute the references to the civil service laws with respect to its appointments. The background is that this small group of about 70 persons is the only one under any court of the U.S. judicial system that is subject to the Civil Service Act of 1883. It is to be explained by the histroy of the court, which was originally the Board of General Appraisers in the Treasury Department, the employees of which were appointed by the Attorney General, in conformity to the civil service laws, as provided for by the successive tariff acts condified in 19 U.S.C. 6. In the Codification Act of 1948 this authority was transferred to the Customs Court, but there remained the anomaly that the appointments, though made by a part of the judiciary, were continued subject to the civil service laws administered by the executive branch. The present provision would correct that inconsistency. It would not, of course, be intended to affect the employees' coverage under the Retirement Act and the Federal Employees Group Life Insurance Act." H.R. Report 944, 86th Cong., 1st Session, reprinted in 1959 U.S. Code Congressional and Administrative News, p. 2281.
On October 10, 1980, Congress further amended § 871 so as to substitute for the name "Customs Court" the "Court of International Trade."
In consequence of the 1959 amendment, when Mareno was hired as a law assistant in 1961 the governing statute provided that he was "subject to removal by the court."
On August 21, 1980, the judges of the United States Customs Court conducted a special meeting and adopted a resolution with respect to the judges' authorized staff. That resolution, made effective October 1, 1980, provided that a judge was authorized to have three personnel positions, which may be either: one secretary and two law clerks; or, one secretary, one law clerk, and one crier. The chief judge of the court was authorized one additional personnel position, which might be either one secretary or one law clerk. The resolution set ...