Plaintiff Linten McGarvey has filed this class action seeking a declaration that defendants' application of 1 D.C. Code SEC. 316 authorizing the exclusion of convicted felons from public employment is a violation of the Comprehensive Training Act of 1973 (CETA) (29 U.S.C. SEC. 845(c)(18)) the Rehabilitation Act of 1973 (29 U.S.C. SEC. 794) United States Civil Service Commission Regulations (5 C.F.R. SEC.(S) 300.101 and 300.103) and the Due Process clause of the Fifth Amendment. Plaintiff has requested also that this Court enjoin the application of 1 D.C. Code SEC. 316 and grant plaintiff back pay. The matter is now before Court on defendants' motion to dismiss or in the alternative for summary judgment and on plaintiff's cross motion for summary judgment.

During 1972-1973 plaintiff a Virginia resident was convicted on three occasions of drug offenses. In 1974 plaintiff was convicted of armed robbery and placed on probation on condition that he complete the Second Genesis program for drug addicts. Plaintiff was certified in 1977 by the Civil Service Commission as eligible for the position of emergency ambulance service technician GS-4-87 T.P. at an annual salary of $8316. The District of Columbia Fire Department subsequently notified plaintiff that they were rejecting his application pursuant to 1 D.C. Code SEC. 316 on the basis of his previous felony conviction. This decision was affirmed by the Director of Personnel of the District of Columbia's denial of plaintiff's request for approval under SEC. 1-316.

Defendants challenge plaintiff's claim that this court has jurisdiction over this case pursuant to 28 U.S.C. SEC.(S) 1331 and 1343(4) and 42 U.S.C. SEC. 2000e-5(f) (3). Court looks first to plaintiff's assertion of federal question jurisdiction under 28 U.S.C. SEC. 1331 and is satisfied that plaintiff's complaint involves a controversy arising under the Constitution and laws of the United States and an amount as measured by the injury to be prevented by the requested relief in excess of $10 000. See Opelika Nursing Home Inc. v. Richardson 448 F.2d 658 (5th Cir. 1971). Because the requirements of federal question jurisdiction have been met it is not necessary to consider independently the existence of jurisdiction under each of plaintiff's remaining allegations.

The code provision at issue reads in pertinent part as follows:

Except upon the written approval of the Mayor or of an official or officials of the District acting pursuant to rules and regulations issued by the Mayor no person who has been convicted of a felony in the District of Columbia or of an offense in any other jurisdiction which if committed in the District would be a felony shall be employed in or by the government of the District of Columbia or any agency thereof.

1 D.C. Code SEC. 316 (1973). District of Columbia Personnel Manual Chapter 8 Section E promulgated in 1973 and amended in 1976 advocates a policy of hiring rehabilitated offenders and provides that a convicted felon may be employed where application of the following factors shows that the applicant is suitable for the position sought: (1) nature and seriousness of the offense; (2) circumstances under which the offense occurred; (3) amount of time which has passed since the commission of the offense; (4) age of the person when he committed the offense; (5) whether the offense was an isolated or repeated violation; (6) social condition which may have contributed to the offense; (7) any evidence of rehabilitation; (8) the kind of position for which the applicant is applying; and (9) the requirements of the position sought.

A classification based on a criminal record is not a suspect classification which requires rigid scrutiny by Court to determine if equal protection under the law is available; nor is there a fundamental right to government employment requiring a compelling state interest to justify denial of employment. Thus Congress may regulate professions which affect the public interest so long as the regulation rationally furthers a legitimate state purpose or interest. Upshaw v. McNamara 435 F.2d 1188 (1st Cir. 1970); Bradford v. D. C. Hacker's License Appeal Board D.C.App. 396 A.2d 988 (1978). See also San Antonio School v. Rodriguez 411 U.S. 1 93 S. Ct. 1278 36 L. Ed. 2d 16 (1973).

It is clear that the rationale for the code provision as applied to plaintiff is to insure that those persons publicly employed to aid persons in emergency situations are sober and alert and possess character qualities such as honesty integrity reliability and obedience to the law. See Upshaw v. McNamara supra at 1190; Bradford v. D. C. Hacker's License Appeal Board supra. Congress may enact prophylactic measures such as SEC. 1-316 to achieve an otherwise legitimate goal without violating the due process clause. Weinberger v. Salfi 422 U.S. 749 777 95 S. Ct. 2457 45 L. Ed. 2d 522 (1975).

The challenged code provision as implemented by the personnel manual is not violative of equal protection nor does it create an irrebuttable presumption in violation of the Fifth Amendment. Further the undisputed evidence establishes that defendants considered the relation between plaintiff's criminal record and the position sought and the overall determination of plaintiff's eligibility was made in substantial compliance with chapter 8 section E. Thus plaintiff's constitutional rights were not violated by defendants' refusal to hire him under SEC. 1-316.

Plaintiff is not a resident of the geographical area served by the District of Columbia as required under the C.E.T.A. program 29 U.S.C. SEC. 823(a) (1978) nor has he alleged that he applied for employment under such a program. Thus he has failed to allege an injury in fact within the zone of interest protected by the statute. Plaintiff lacks standing to raise the claim that SEC. 1-316 as applied to him raises an artificial employment barrier in violation of 29 U.S.C. SEC.(S) 801 Et seq. and regulations promulgated thereunder. See Simon v. Eastern Kentucky Welfare Rights Organization 426 U.S. 26 96 S. Ct. 1917 48 L. Ed. 2d 450 (1976).

The Rehabilitation Act of 1974 29 U.S.C. SEC. 794 does not prohibit consideration of a criminal record in determining suitability for employment. Further the evidence establishes that defendants considered other factors related to plaintiff's qualifications to perform as an ambulance technician and did not violate this Act by refusing to hire him solely on the basis of his drug addiction. See Davis v. Bucher 451 F. Supp. 791 797 n.4 (E.D.Pa.1978).

The Civil Service Commission's regulations at 5 C.F.R. SEC. 731.202 Et seq. clearly contemplate that a criminal record or a history of drug or alcohol addiction bears a rational relation to suitability for federal employment. Court gives great weight to the Commission's own use of these criteria in finding that application of SEC. 1-316 and chapter 8 section E to plaintiff does not discriminate against him on a non-merit basis within the purview of 5 C.F.R. SEC. 300.103. See Fox v. Washington 396 F. Supp. 504 (D.D.C.1975).

Accordingly plaintiff's motion for summary judgment is denied and defendants' motion for summary judgment is granted.