The opinion of the court was delivered by: MUIR
DiLuigi filed this complaint alleging that his constitutional rights under the due process clause of the Fifth Amendment of the United States Constitution were violated by the termination of his employment as an electronics mechanic at the Army Aviation Support Facility (AASF), Indiantown Gap, Pennsylvania without adequate notice or a hearing. DiLuigi seeks reinstatement to his position and an award of back pay not in excess of $10,000. On July 7 and July 8, 1977, this case was tried before the undersigned judge without a jury. On July 7, 1977, the Court entered an Order allowing DiLuigi until July 19, 1977 to file a responsive brief to a motion submitted on July 5, 1977 by the Defendant based on the proposition that the Court lacks subject-matter jurisdiction of DiLuigi's claim. DiLuigi submitted his brief on July 21, 1977. The following are the Court's findings of fact, discussion, and conclusions of law:
1. The Plaintiff, Pasquale DiLuigi, first enlisted in the Pennsylvania Army National Guard on November 26, 1974, for a period of one-year. (Undisputed)
2. On October 19, 1975, the Plaintiff extended his military enlistment in the Pennsylvania National Guard for one year. (Undisputed)
3. Again on November 1, 1976, the Plaintiff extended his enlistment in the military, this time for a period of three years. (Undisputed)
4. The three enlistments referred to in the preceding paragraphs were voluntary. (Undisputed)
5. On June 16, 1975, while a member of the Pennsylvania National Guard, the Plaintiff was hired as a National Guard technician on a trial or probationary basis for one year. The Plaintiff thereafter was employed at the Army Aviation Support Facility (AASF), located at Indiantown Gap, Pennsylvania. (Undisputed)
6. The Defendant, Major General Nicholas P. Kafkalas, is the Adjutant General of the Pennsylvania Army National Guard. (Undisputed)
7. The Plaintiff was hired by the AASF as an electronics mechanic pursuant to the authorization set forth in the National Guard Technicians Act of 1968, as amended, 32 U.S.C. § 709(a). (Undisputed)
8. The Plaintiff was aware at the time he was first employed by AASF as a technician that his employment was probationary in nature and the trial period for employment was to last one year.
9. The written instrument initiating the Plaintiff's employment as a probationary technician provided, inter alia, that his employment was "subject to completion of one year trial period commencing on 6-16-75." (Undisputed)
10. Both prior to, during and after the terms of his employment with the AASF, DiLuigi held the military grade of SP4, an enlisted man's position in the Pennsylvania National Guard, until September 1, 1976 when he was promoted to the grade of SP5. Said military grade was appropriate to his civilian technician's job as electronics mechanic.
11. The Facility Commander of the AASF was Lieutenant Colonel, now Colonel, Bobby G. Hanna. (Undisputed)
12. Although Colonel Hanna had no daily supervisory responsibilities with regard to the Plaintiff, he did have occasion to observe Plaintiff's behavior with other individuals.
13. The AASF included approximately 300 employees under Colonel Hanna's command.
15. The Plaintiff was one of over 100 employees under Captain Edgar's command.
16. Although Captain Edgar did not personally supervise the Plaintiff in the performance of the Plaintiff's work on a daily basis, he did supervise Mr. DiLuigi on occasion. (Undisputed)
17. To assist him in his supervisory responsibilities, Captain Edgar had two Aircraft Repair Mechanic Foremen. The senior of these two foremen, Warrant Officer Arthur E. Warren, was directly responsible for supervising the Aircraft Repair Section of the AASF; the subordinate of these two foremen, Sergeant 1st Class Eugene S. Beam, was responsible for supervising the Allied Trades Section of the AASF. These foremen were first level supervisors of all technicians under Captain Edgar's command.
18. Warrant Officer Warren's section had responsibility for overall maintenance of the facility's 93 aircraft. Sergeant Beam's section had responsibility for the maintenance of aircraft components.
19. The Plaintiff worked in Sergeant Beam's section in a smaller unit of about 14 technicians referred to as the Avionics Team. (Undisputed)
20. Effective and efficient maintenance of the AASF's 93 aircraft required close coordination between the two sections within Captain Edgar's command. (Undisputed)
21. Sergeant Beam was the Allied Trade Foreman prior to June 16, 1975, when the Plaintiff began work, until March 26, 1976 when Beam retired. (Undisputed)
22. On August 22, 1975, DiLuigi's supervisor Beam and Captain Edgar were notified that DiLuigi was due a within grade increase from WG-09, Step 1 to WG-09, Step 2. This increase was approved by Colonel Niles and became effective December 21, 1975. As a result of said increase, DiLuigi's salary became $11,814.40 annually.
23. The Technician Personnel Office (TPO) and the Personnel Officer, Colonel Hugh S. Niles, are the office and officer on the staff of the Adjutant General and directly responsible to the Adjutant General for personnel administration and review of all technician employment of the Pennsylvania National Guard. There is no direct daily supervisory relationship between Colonel Niles on the one hand and Colonel Hanna and Captain Edgar on the other. The Personnel Officer does not engage in any daily supervision of technicians such as DiLuigi.
24. During his probationary employment the Plaintiff maintained an acceptable level of work performance. (Undisputed)
25. By order of the Secretary of the Army and Secretary of the Air Force, the Federal Personnel Manual, the Federal Personnel Manual Supplements and the Technician Personnel Manual are the official regulations governing the administration of technician personnel. The National Guard Bureau issues Technician Personnel Pamphlets (TPP) which are the daily working ...