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NOT FOR PUBLICATION NOV 05 2010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.