Timothy D'Angelo v. Donald Winter , 403 F. App'x 181 ( 2010 )

FILED
NOT FOR PUBLICATION NOV 05 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
TIMOTHY D'ANGELO, No. 09-55653
Plaintiff - Appellant, D.C. No. 3:08-cv-0718-JAH-(LSP)
v.
MEMORANDUM *
DONALD C. WINTER, Secretary of the
Navy,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted June 11, 2010
Pasadena, California
Before: GOODWIN and RAWLINSON, Circuit Judges, and BENNETT, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Marµ W. Bennett, United States District Judge for the
Northern District of Iowa, sitting by designation.
Plaintiff Timothy D'Angelo ('Plaintiff') appeals the dismissal with
prejudice of his action for wrongful termination of employment. We have
jurisdiction under 28 U.S.C. y 1291. We reverse.
Plaintiff sued Donald C. Winter, Secretary of the Navy ('Defendant'),
alleging that the Navy Exchange violated his Fifth Amendment rights by
suspending and terminating his employment without due process. The district
court dismissed Plaintiff's complaint because Plaintiff, an 'excepted service'
employee, has no constitutionally protected property right in continued
employment under the Civil Service Reform Act ('CSRA'). However, the district
court did not consider whether Plaintiff has a property right in continued
employment created by another source. See Orloff v. Cleland, 708 F.2d 372, 377
(9th Cir. 1983) (stating that property rights may arise from statutes, regulations,
ordinances, and express or implied contracts). At argument, Defendant conceded
that the Navy's policies created a property right for Plaintiff. Thus, the dismissal
cannot be affirmed on the basis that Plaintiff has no constitutionally protected
property right in continued employment.
Defendant asµs this Court to affirm on the alternate basis that some of the
Navy's acts listed in the First Amended Complaint are discretionary employment
decisions and the CSRA indicates Congress's intention to preclude judicial review
-2-
of employment decisions. However, this Court has held that a plaintiff with no
alternate avenue of review is not precluded from bringing constitutional claims
seeµing equitable relief. See AFGE Local 1 v. Stone, 502 F.3d 1027, 1037-39 (9th
Cir. 2007). Such constitutional claims must be colorable. See Anderson v. Babbitt,
230 F.3d 1158, 1163 (9th Cir. 2000). Here, Plaintiff alleges a colorable Fifth
Amendment violation, seeµs equitable relief, and has no alternate avenue of
review. Therefore, the dismissal cannot be affirmed on the basis that some of the
Navy's acts may have been discretionary.
Finally, Defendant asµs this Court to affirm on the alternate basis that
Plaintiff received due process as a matter of law. However, the First Amended
Complaint alleges that the review process was a facade and the outcome was
predetermined. A hearing with a predetermined outcome does not satisfy due
process. See Matthews v. Harney County, 819 F.2d 889, 894 (9th Cir. 1987).
Therefore, the dismissal cannot be affirmed on the basis that Plaintiff received due
process as a matter of law.
REVERSED and REMANDED.
-3-
FILED
D'Angelo v. Winter, Case No. 09-55653 NOV 05 2010
Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
I concur in the proposed disposition because, and only because, the
government conceded that Plaintiff Timothy D'Angelo had a property interest in
continued employment with the United States Navy. Because the district court did
not reach the issue of the adequacy of the pleadings regarding the process afforded
D'Angelo, neither do I.