HERRIGES v. UNITED STATES No. 2926.
314 F.Supp. 1352 (1970)
Patrick N. HERRIGES and Charles R. Hall, Plaintiffs, v. UNITED STATES of America, the Department of Transportation, its Agents, the Federal Aviation Administration and E. G. Fairbank, Acting Chief, Great Falls Air Route Traffic Control Center, Defendants.
United States District Court, D. Montana, Great Falls Division.
July 2, 1970.
Dzivi, Conklin & Johnson, Great Falls, Mont., for plaintiffs.
Otis L. Packwood, U. S. Atty., D. Montana, Billings, Mont., William A. Brolin, Asst. U. S. Atty., Butte, Mont., for defendants.
OPINION AND ORDER
RUSSELL E. SMITH, Chief Judge.
It is judicially noted that in late March and early April, 1970, the United States was injured because of a partial paralyzation of its air transportation system. The cause of the injury was the failure on the part of many air traffic controllers to report for duty. Petitioners, two of those controllers who failed to report for work, were discharged for, among other things, failing to report.
The application for a preliminary injunction is denied and the order to show cause is discharged for these reasons:
The first object of the framers of the Constitution was to establish a system of government. The system established envisaged three great departments, legislative, executive and judicial,
I think not.
It has been the rule that courts do not have jurisdiction to interfere with the action of an administrative agency until the administrative remedies have been exhausted, at least where applicable rules have been followed.
That case held that a Public Welfare recipient had a certain "entitlement" to welfare which could not be cut off in the absence of a pre-termination evidentiary hearing.
The concurring opinion in Ricucci v. United States, Ct.Cl.1970, 425 F.2d 1252, is urged as authority for the petitioners' position. I consider what is said in the concurring opinion relative to the lack of due process in the existing legislative regulations relative to the discharge of government employees only for the purpose of rejecting it.
I think that the United States, in its sovereign capacity, has a right in the hiring of employees, to fix the conditions of the hiring, in terms of the salary to be paid, the hours to be worked, the rules to be obeyed and the tenure to be enjoyed. I do not believe that due process enters into the contract between the United States and its employees. Once the contract of employment is made, the rules and regulations may become a part of that contract and then the employee does have contractual rights which must be respected. There is no conflict between what is here said and Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) and Meehan v. Macy, 129 U.S.App.D.C. 217, 392 F.2d 822 (1968). In the former a policeman was said not to be required to give up his rights not to incriminate himself as a condition of his employment, while in the latter case it was said that a federal employee does not forfeit all First Amendment rights upon being employed. The point is, however, that in the cited cases the individuals involved had rights which originated not in their employment but in the Constitution itself. There is a difference between a man who is denied public employment because he is black or who is fired because he had voiced an opinion on a matter of public concern,
I am not tempted, using the decision in Goldberg as a springboard, to discover new due process rights which would undercut long established administrative procedures. The recent discovery by public employees of all levels of government that under our general system of due process, laws cannot be enforced against mass violators of law and that the no strike law
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