the Pennsylvania National Guard effective April 30, 1976 because his "conduct and character traits are such that retention in federal service is not recommended." Notice of this decision was conveyed to DiLuigi in a letter dated March 26, 1976, which cited his ". . . [inability] to cope with certain responsibilities inherent with [sic] your position . . ." and his ". . . [inability] to grasp and maintain basic fundamentals required of your position." The letter closed with an invitation to direct "questions relative to above termination" to the office of the Adjutant General. DiLuigi alleges that the reasons advanced for his non-retention mask a malicious, arbitrary, and capricious action on the part of his employers which deprived him of rights secured by the United States Constitution.
DiLuigi does not contend that the Defendant violated applicable National Guard regulations in effecting his dismissal. Rather, he argues that the minimal steps taken to notify him of and carry out his separation fall short of the due process guaranteed by the Fifth Amendment.
To determine whether DiLuigi was "deprived of . . . property, without due process of law" requires a two-step inquiry. First, the Court must determine the extent of DiLuigi's "property rights," if any, in this context. Then, only if he has some "property interest" which has been impaired by the action of the Defendant and his agents does it become necessary to analyze whether the "taking" was effectuated in violation of the "due process" requirements of the Fifth Amendment. Cf. Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31, 38 (3d Cir. 1974), vacated and remanded on other grounds, 421 U.S. 983, 95 S. Ct. 1986, 44 L. Ed. 2d 474 (1975); see, also, Chung v. Park, 377 F. Supp. 524 (M.D.Pa.1974), aff'd 514 F.2d 382 (3d Cir. 1975), cert. den., 423 U.S. 948, 96 S. Ct. 364, 46 L. Ed. 2d 282 (1975).
Existing rules that stem from federal statutes and regulations define DiLuigi's "property interest" in employment with the National Guard beyond his one-year probationary period. Cf. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). DiLuigi's "property" must be more than a "unilateral expectation" on his part. He must, instead, have a legitimate claim of entitlement to continued employment. Ibid. Thus, for example, DiLuigi's personal assessment of his two within-grade increases and his immediate superior's evaluation of his work as indications that his performance was satisfactory and that he would be retained does not, standing alone, suffice to create the requisite property interest. However, he does not rest his claim to a constitutionally-protected interest solely on those factors.
32 U.S.C. § 709(e)(3) provides:
"(e) Notwithstanding any other provision of law and under regulations prescribed by the Secretary concerned --