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October 4, 1984


The opinion of the court was delivered by: TELESCA



 On February 3, 1984, plaintiff, Patrick Cioppa, was terminated from his employment with defendant, United States Postal Service, allegedly as a result of unsatisfactory performance during his probationary period. On February 23, 1984, plaintiff appealed his termination to the Merit Systems Protection Board. Since plaintiff was a probationary employee, his appeal was dismissed for lack of appellate jurisdiction. On May 30, 1984, plaintiff brought this action against defendant under 39 U.S.C. Section 409(a), alleging that his dismissal was "arbitrary and capricious" and occurred under suspicious circumstances pointing to fraud. The defendant moved for an order dismissing the action, or in the alternative for summary judgment, on the grounds that the Court lacks subject matter jurisdiction and that the complaint fails to state a claim upon which relief can be granted.After hearing the argument of counsel, this Court denied defendant's motions in an oral decision on September 5, 1984.

 On Septemmber 19, 1984, defendant brought the present motion, urging this Court to reconsider the defendant's earlier motions, or in the alternative, to certify the question of law at issue in this case for interlocutory appeal pursuant to 28 U.S.C. Section 1292.




 At the outset, it would appear that subject matter jurisdiction over this action is proper under 39 U.S.C. Section 409(a), which provides that, with one exception not applicable here, "the United States district courts shall have original but not exclusive jurisdiction over all actions brought by or against the Postal Service." Relying in part upon this general jurisdictional grant, plaintiff argues that this Court has the "inherent non-statautory power of judicial review" over administrative agency action to guard against "arbitrary and capricious" decisions. Defendant, relying principally upon Bishop v. Wood, 426 U.S. 341, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976), argues that a dismissal of a probationary employee is a matter strictly within the discretion of the federal agency and cannot be reviewed in federal court, even if plaintiff's dismissal were in fact "arbitrary and capricious." I disagree.

 As a preliminary matter, it must be emphasized that the question before this Court is extremely narrow. Plaintiff does not allege that his dismissal violated any of his constitutional rights. Moreover, plaintiff frankly concedes that his dismissal complied witht he minimal procedural requirements imposed by applicable federal law for probationary employees. Plaintiff contends simply that this discharge was "arbitrary and capricious" and that it was procured by fraud and urges this Court to exercise review only on that basis. Defendant, for its part, candidly acknowledges that there are several "limited exceptions" to the general rule with immunizes the discharge of a probationary employee from judicial review, but denies that this case falls within a recognized exception, even if plaintiff's allegations are true.The only question of law to be resolved, therefore, is whether this Court has the non-statutory power to review administrative personnel decisions which are allegedly "arbitrary and capricious".

 39 U.S.C. Section 410(a) specifically exempts the Postal Service from the requirements of the Administrative Procedure Act (APA) 5 U.S.C. Section 701 et seq., including the provision of the APA authorizing judicial review over arbitrary and capricious agency action. 5 U.S.C. Section 706 (2)(A). Although this Court is not empowered under the APA to determine whether a Postal employee's dismissal was arbitrary or capricious, the question remains open as to whether Congress affirmatively intended to forbid such review.

 The question is phrased in terms of "prohibition" rather than "authorization" because a survey of our cases shows that judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Contress . . . [O]nly upon a showing of "clear and convincing evidence" of a contrary legislative intent should the courts restrict access to judicial review.

 Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 141, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967) (Citations omitted).

 Consequently, the mere absence of express statutory authorization does not necessarily foreclose this Court from exercising limited judicial review over Postal Service actions. As the Court reasoned in Burns v. United States Postal Service, 380 F. Supp. 623, 626 (S.D.N.Y. 1974),

 There is nothing in the legislative history of the [Postal] Reorganization Act which suggests that Congress either impliedly or expressly intended to commit [employee compensation] entirely to the Postal Service's discretion. In fact, just the opposite conclusion may be inferred from the enactment of Section 409 which grants original jurisdiction to the District Court of "all actions brought by or against the Postal Service" . . . The existence of a jurisdiction-conferring section like Section 409 provides the basis for maintaining a "nonstatutory" review action". Byse and Fiocca, Section 1361 of the Mandamus and Venue Act of 1962 and "Nonstatutory" Judicial Review of Federal Administrative Action, 81 Harvard Law Review, 308, 321, 323, (1967).

 As the Supreme Court observed in Christian v. New York Stte Department of Labor, 414 U.S. 614, 622, 39 L. Ed. 2d 38, 94 S. Ct. 747 (1974), an action brought by a probationary Postal employee challenging her dismissal, "the fact that the employing agency's decision is not statutorily subject to judicial review does not preclude review of the agency's procedure used to reach that determination."

 Despite the absence of express statutory authorization for judicial review, and the fact that the Postal Service enjoys the widest latitude in its personnel decisions, virtually every federal court confronting the issue has held that Postal Service employees are nonetheless entitled to non-statutory judicial review as a safegaurd against arbitrary and capricious dismissal, in light of the "strong presumption in favor of judicial review of administrative action, especially in conjunction with the general jurisdictional grant of 39 U.S.C. Section 409(a)." Jordan v. Bolger, 522 F. Supp. 1197, 1202 (N.D. Miss. 1981), affirmed, 685 F.2d 1384 (5th Cir. 1982), cert. denied, 459 U.S. 1147, 103 S. Ct. 788, 74 L. Ed. 2d 994 (1983). Although a federal court may not second guess the wisdom of administrative personnel decisions, federal courts routinely review dismissals of Postal Service employees for the limited purpose of ensuring that such decisions are neither arbitrary nor capricious -- precisely the sort of review requested by plaintiff in this case.Book v. U.S. Postal Service, 675 F.2d 158 (8th Cir. 1982); Yacovone v. Bolger, 207 U.S. App. D.C. 103, 645 F.2d 1028 (D.C. Cir. 1981), cert. denied, 454 U.S. 844, 70 L. Ed. 2d 130, 102 S. Ct. 159 (1981); Adkins v. Hampton, 586 F.2d 1070 (5th Cir. 1978); Alsbury v. U.S. Postal Service, 530 F.2d 852 ...

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