Appellee, a nonprobationary employee in the competitive Civil
Service, was dismissed from his position in the Office of Economic
Opportunity (OEO) for allegedly having made recklessly false and
defamatory statements about other OEO employees. Though previously
advised of his right under OEO and Civil Service Commission (CSC)
regulations to reply to the charges and that the material on which
the dismissal notice was based was available for his inspection, he
did not respond to the substance of the charges, but brought this
suit for injunctive and declaratory relief, contending that the
standards and procedures established by and under the Lloyd-La
Follette Act, 5 U.S.C. § 7501, for the removal of nonprobationary
employees from the federal service unwarrantedly interfere with
such employees' freedom of expression and deny them procedural due
process. A three-judge District Court held that the Act and
attendant regulations denied appellee due process because they
failed to provide for a trial-type pre-removal hearing before an
impartial official and were unconstitutionally vague because they
failed to furnish sufficiently precise guidelines as to what kind
of speech might be made the basis for removal action. Section 7501
of the Act provides for removal of nonprobationary federal
employees "only for such cause as will promote the efficiency of
the service," and prescribes that the employing agency must furnish
the employee with written notice of the proposed removal action and
a copy of the charges; give him a reasonable time for a written
answer and supporting affidavits; and promptly furnish him with the
agency's decision. The Act further provides, however, that
"[e]xamination of witnesses, trial, or hearing is not required,"
but is discretionary with the individual directing the removal. CSC
and OEO regulations enlarge the statutory provisions by requiring
30 days' advance notice before removal and in other respects, and
entitle the employee to a post-removal evidentiary trial-type
hearing at the appeal stage. If the employee is reinstated on
appeal, he receives full backpay. In addition
Page 416 U. S. 135
to his First Amendment claims, appellee contends that, absent a
full adversary hearing before removal, he could not consistently
with due process requirements be divested of his property interest
or expectancy in employment or be deprived of his "liberty" to
refute the charges of dishonesty on which he asserts his dismissal
was based.
Held: The judgment is reversed and the case remanded.
Pp.
416 U. S.
148-171.
349 F.
Supp. 863, reversed and remanded.
MR. JUSTICE REHNQUIST, joined by THE CHIEF JUSTICE and MR.
JUSTICE STEWART, concluded that:
1. In conferring upon nonprobationary federal employees, the
right not to be discharged except for "cause" and at the same time
conditioning the grant of that right by procedural limitations, the
Act did not create, and the Due Process Clause does not require,
any additional expectancy of job retention.
Cf. Board of
Regents v. Roth, 408 U. S. 564,
408 U. S. 577.
Pp.
416 U. S.
148-155.
2. The CSC and OEO post-termination hearing procedures
adequately protect the liberty interest of federal employees,
recognized in
Roth, supra, in not being wrongfully
stigmatized by untrue and unsupported administrative charges. Pp.
416 U. S.
156-158.
3. The Act's standard of employment protection, which describes
as explicitly as is feasible in view of the wide variety of factual
situations where employees' statements might justify dismissal for
"cause" the conduct that is ground for removal, is not
impermissibly vague or overbroad in regulating federal employees'
speech.
CSC v. Letter Carriers, 413 U.
S. 548,
413 U. S.
578-579. Pp.
416 U. S.
158-163.
MR. JUSTICE POWELL, joined by MR. JUSTICE BLACKMUN, while
agreeing that 5 U.S.C. § 7501(a) is not unconstitutionally vague or
overbroad, concluded with respect to the due process issue that
appellee, as a nonprobationary federal employee who could be
discharged only for "cause," had a legitimate claim of entitlement
to a property interest under the Fifth Amendment, and his
employment could not be terminated without notice and a full
evidentiary hearing. On the other hand, the Government as an
employer must have discretion expeditiously to remove employees who
hinder efficient operation. Since the procedures under the Act and
regulations minimize the risk of error in the initial removal
decision and provide for a post-removal evidentiary hearing with
reinstatement and backpay should that decision be wrongful, a
reasonable accommodation comporting with due process
Page 416 U. S. 136
is provided between the competing interests of the employee and
the Government as employer. Pp.
416 U. S.
164-171.
REHNQUIST, J., announced the Court's judgment and delivered an
opinion, in which BURGER, C.J., and STEWART, J., joined. POWELL,
J., filed an opinion concurring in part and concurring in the
result in part, in which BLACKMUN, J., joined,
post, p.
416 U. S. 164.
WHITE, J., filed an opinion concurring in part and dissenting in
part,
post, p.
416 U. S. 171.
DOUGLAS, J., filed a dissenting opinion,
post, p.
416 U. S. 203.
MARSHALL, J., filed a dissenting opinion, in which DOUGLAS and
BRENNAN, JJ., joined,
post, p.
416 U. S.
206.
MR. JUSTICE REHNQUIST announced the judgment of the Court in an
opinion in which THE CHIEF JUSTICE and MR. JUSTICE STEWART
join.
Prior to the events leading to his discharge, appellee Wayne
Kennedy [
Footnote 1] was a
nonprobationary federal employee
Page 416 U. S. 137
in the competitive Civil Service. He was a field representative
in the Chicago Regional Office of the Office of Economic
Opportunity (OEO). In March, 1972, he was removed from the federal
service pursuant to the provisions of the Lloyd-La Follette Act, 5
U.S.C. § 7501, after Wendell Verduin, the Regional Director of the
OEO, upheld written administrative charges made in the form of a
"Notification of Proposed Adverse Action" against appellee. The
charges listed five events occurring in November and December,
1971; the most serious of the charges was that appellee, "without
any proof whatsoever and in reckless disregard of the actual facts"
known to him or reasonably discoverable by him, had publicly stated
that Verduin and his administrative assistant had attempted to
bribe a representative of a community action organization with
which the OEO had dealings. The alleged bribe consisted of an offer
of a $100,000 grant of OEO funds if the representative would sign a
statement against appellee and another OEO employee.
Appellee was advised of his right under regulations promulgated
by the Civil Service Commission and the OEO to reply to the charges
orally and in writing, and to submit affidavits to Verduin. He was
also advised that the material on which the notice was based was
available for his inspection in the Regional Office, and that a
copy of the material was attached to the notice of proposed adverse
action.
Appellee did not respond to the substance of the charges against
him, but instead asserted that the charges were unlawful because he
had a right to a trial-type hearing before an impartial hearing
officer before he could be removed from his employment, and because
statements
Page 416 U. S. 138
made by him were protected by the First Amendment to the United
States Constitution. [
Footnote
2] On March 20, 1972, Verduin notified appellee in writing that
he would be removed from his position at the close of business on
March 27, 1972. Appellee was also notified of his right to appeal
Verduin's decision either to the OEO or to the Civil Service
Commission.
Appellee then instituted this suit in the United States District
Court for the Northern District of Illinois on behalf of himself
and others similarly situated, seeking both injunctive and
declaratory relief. In his amended complaint, [
Footnote 3] appellee contended that the standards
and procedures established by and under the Lloyd-La Follette Act
for the removal of nonprobationary employees
Page 416 U. S. 139
from the federal service unwarrantedly interfere with those
employees' freedom of expression and deny them procedural due
process of law. The three-judge District Court, convened pursuant
to 28 U.S.C. §§ 2282 and 2284, granted summary judgment for
appellee.
349 F.
Supp. 863. The court held that the discharge procedures
authorized by the Act and attendant Civil Service Commission and
OEO regulations denied appellee due process of law because they
failed to provide for a trial-type hearing before an impartial
agency official prior to removal; the court also held the Act and
implementing regulations unconstitutionally vague because they
failed to furnish sufficiently precise guidelines as to what kind
of speech may be made the basis of a removal action. The court
ordered that appellee be reinstated in his former position with
backpay, and that he be accorded a hearing prior to removal in any
future removal proceedings. Appellants were also enjoined from
further enforcement of the Lloyd-La Follette Act, and implementing
rules, as "construed to regulate the speech of competitive service
employees." [
Footnote 4]
I
The numerous affidavits submitted to the District Court by both
parties not unexpectedly portray two widely differing versions of
the facts which gave rise to this lawsuit. Since the District Court
granted summary judgment to appellee, it was required to resolve
all genuine disputes as to any material facts in favor of
appellants, and we therefore take as true for purposes
Page 416 U. S. 140
of this opinion the material particulars of appellee's conduct
which were set forth in the notification of proposed adverse action
dated February 18, 1972. The District Court's holding necessarily
embodies the legal conclusions that, even though all of these
factual statements were true, the procedure which the Government
proposed to follow in this case was constitutionally insufficient
to accomplish appellee's discharge, and the standard by which his
conduct was to be judged in the course of those procedures
infringed his right of free speech protected by the First
Amendment.
The statutory provisions which the District Court held invalid
are found in 5 U.S.C. § 7501. Subsection (a) of that section
provides that
"[a]n individual in the competitive service may be removed or
suspended without pay only for such cause as will promote the
efficiency of the service."
Subsection (b) establishes the administrative procedures by
which an employee's rights under subsection (a) are to be
determined, providing:
"(b) An individual in the competitive service whose removal or
suspension without pay is sought is entitled to reasons in writing
and to -- "
"(1) notice of the action sought and of any charges preferred
against him;"
"(2) a copy of the charges;"
"(3) a reasonable time for filing a written answer to the
charges, with affidavits; and"
"(4) a written decision on the answer at the earliest
practicable date."
"Examination of witnesses, trial, or hearing is not required,
but may be provided in the discretion of the individual directing
the removal or suspension without pay. Copies of the charges, the
notice of hearing, the answer, the reasons for and the order
Page 416 U. S. 141
of removal or suspension without pay, and also the reasons for
reduction in grade or pay, shall be made a part of the records of
the employing agency, and, on request, shall be furnished to the
individual affected and to the Civil Service Commission."
This codification of the Lloyd-La Follette Act is now
supplemented by the regulations of the Civil Service Commission,
and, with respect to the OEO, by the regulations and instructions
of that agency. Both the Commission and the OEO have by regulation
given further specific content to the general removal standard in
subsection (a) of the Act. The regulations of the Commission
[
Footnote 5] and the OEO,
[
Footnote 6] in nearly
identical language, require
Page 416 U. S. 142
that employees
"avoid any action . . . which might result in, or create the
appearance of . . . [a]ffecting adversely the confidence of the
public in the integrity of [OEO and] the Government,"
and that employees not "engage in criminal, infamous, dishonest,
immoral, or notoriously disgraceful or other conduct prejudicial to
the Government." The OEO further provides by regulation that its
Office of General Counsel is available to supply counseling on the
interpretation of the laws and regulations relevant to the conduct
of OEO employees. [
Footnote
7]
Both the Commission and the OEO also follow regulations
enlarging the procedural protections accorded by the Act itself.
[
Footnote 8] The Commission's
regulations provide,
Page 416 U. S. 143
inter alia, that the employing agency must give 30
days' advance written notice to the employee prior to removal, and
make available to him the material on which the notice is based.
[
Footnote 9] They also provide
that the employee shall have an opportunity to appear before the
official vested with authority to make the removal decision in
order to answer the charges against him, [
Footnote 10]
Page 416 U. S. 144
that the employee must receive notice of an adverse decision on
or before its effective date, and that the employee may appeal from
an adverse decision. [
Footnote
11] This appeal may be either to a reviewing authority within
the employing agency [
Footnote
12] or directly to the Commission, [
Footnote 13]
Page 416 U. S. 145
and the employee is entitled to an evidentiary trial-type
hearing at the appeal stage of the proceeding. [
Footnote 14] The only trial-type hearing
available within the OEO is, by
Page 416 U. S. 146
virtue of its regulations and practice, typically held after
actual removal; [
Footnote
15] but if the employee is reinstated on appeal, he receives
full backpay, less any amounts earned by him through other
employment during that period. [
Footnote 16]
Page 416 U. S. 147
We must first decide whether these procedures established for
the purpose of determining whether there is "cause" under the
Lloyd-La Follette Act for the dismissal
Page 416 U. S. 148
of a federal employee comport with procedural due process, and
then decide whether that standard of "cause" for federal employee
dismissals was within the constitutional power of Congress to
adopt.
II
For almost the first century of our national existence, federal
employment was regarded as an item of patronage, which could be
granted, withheld, or withdrawn for whatever reasons might appeal
to the responsible executive hiring officer. Following the Civil
War, grass-roots sentiment for "Civil Service reform" began to
grow, and it was apparently brought to a head by the assassination
of President James A. Garfield on July 2, 1881. Garfield, having
then held office only four months, was accosted in Washington's
Union Station and shot by a dissatisfied office seeker who believed
that the President had been instrumental in refusing his request
for appointment as United States Consul in Paris. During the
Page 416 U. S. 149
summer, while President Garfield lingered prior to his death in
September, delegates from 13 Civil Service reform associations met
and formed the National Civil Service Reform League. Responding to
public demand for reform led by this organization, Congress, in
January, 1883, enacted the Pendleton Act. [
Footnote 17]
While the Pendleton Act is regarded as the keystone in the
present arch of Civil Service legislation, by present-day
standards, it was quite limited in its application. It dealt almost
exclusively with entry into the federal service, and hardly at all
with tenure, promotion, removal, veterans' preference, pensions,
and other subjects addressed by subsequent Civil Service
legislation. The Pendleton Act provided for the creation of a
classified Civil Service, and required competitive examination for
entry into that service. Its only provision with respect to
separation was to prohibit removal for the failure of an employee
in the classified service to contribute to a political fund or to
render any political service. [
Footnote 18]
For 16 years following the effective date of the Pendleton Act,
this last-mentioned provision of that Act appears to have been the
only statutory or regulatory limitation on the right of the
Government to discharge classified employees. In 1897, President
William McKinley promulgated Civil Service Rule II, [
Footnote 19] which provided that removal
from the competitive classified service should not be made except
for just cause and for
Page 416 U. S. 150
reasons given in writing. While job tenure was thereby accorded
protection, there were no administrative appeal rights for action
taken in violation of this rule, and the courts declined to
judicially enforce it. Thus matters stood with respect to
governmental authority to remove federal employees until the
enactment of the Lloyd-La Follette Act.
The Lloyd-La Follette Act was enacted as one section of the Post
Office Department appropriation bill for the fiscal year 1913. That
Act guaranteed the right of federal employees to communicate with
members of Congress, and to join employee organizations. It also
substantially enacted and enlarged upon Civil Service Rule II in
the following language:
"[N]o person in the classified civil service of the United
States shall be removed therefrom except for such cause as will
promote the efficiency of said service and for reasons given in
writing, and the person whose removal is sought shall have notice
of the same and of any charges preferred against him, and be
furnished with a copy thereof, and also be allowed a reasonable
time for personally answering the same in writing, and affidavits
in support thereof; but no examination of witnesses nor any trial
or hearing shall be required except in the discretion of the
officer making the removal, and copies of charges, notice of
hearing, answer, reasons for removal, and of the order of removal
shall be made a part of the records of the proper department or
office, as shall also the reasons for reduction in rank or
compensation; and copies of the same shall be furnished to the
person affected upon request, and the Civil Service Commission also
shall, upon request, be furnished copies of the same. . . .
[
Footnote 20] "
Page 416 U. S. 151
That Act, as now codified, 5 U.S.C. § 7501, together with the
administrative regulations issued by the Civil Service Commission
and the OEO, provided the statutory and administrative framework
which the Government contends controlled the proceedings against
appellee. The District Court, in its ruling on appellee's
procedural contentions, in effect held that the Fifth Amendment to
the United States Constitution prohibited Congress, in the Lloyd-La
Follette Act, from granting protection against removal without
cause, and, at the same time -- indeed, in the same sentence --
specifying that the determination of cause should be without the
full panoply of rights which attend a trial-type adversary hearing.
We do not believe that the Constitution so limits Congress in the
manner in which benefits may be extended to federal employees.
Appellee recognizes that our recent decisions in
Board of
Regents v. Roth, 408 U. S. 564
(1972), and
Perry v. Sindermann, 408 U.
S. 593 (1972), are those most closely in point with
respect to the procedural rights constitutionally guaranteed public
employees in connection with their dismissal from employment.
Appellee contends that he had a property interest or an expectancy
of employment which could not be divested without first affording
him a full adversary hearing.
In
Board of Regents v. Roth, we said:
"Property interests, of course, are not created by the
Constitution. Rather, they are created and their dimensions are
defined by existing rules or understandings that stem from an
independent source such as state law -- rules or understandings
that secure certain benefits and that support claims of entitlement
to those benefits."
408 U.S. at
408 U. S. 577.
Here, appellee did have a statutory expectancy that he not be
removed other than for "such cause as will promote
Page 416 U. S. 152
the efficiency of [the] service." But the very section of the
statute which granted him that right, a right which had previously
existed only by virtue of administrative regulation, expressly
provided also for the procedure by which "cause" was to be
determined, and expressly omitted the procedural guarantees which
appellee insists are mandated by the Constitution. Only by
bifurcating the very sentence of the Act of Congress which
conferred upon appellee the right not to be removed save for cause
could it be said that he had an expectancy of that substantive
right without the procedural limitations which Congress attached to
it. In the area of federal regulation of government employees,
where in the absence of statutory limitation the governmental
employer has had virtually uncontrolled latitude in decisions as to
hiring and firing,
Cafeteria Workers v. McElroy,
367 U. S. 886,
367 U. S.
896-897 (1961), we do not believe that a statutory
enactment such as the Lloyd-La Follette Act may be parsed as
discretely as appellee urges. Congress was obviously intent on
according a measure of statutory job security to governmental
employees which they had not previously enjoyed, but was likewise
intent on excluding more elaborate procedural requirements which it
felt would make the operation of the new scheme unnecessarily
burdensome in practice. Where the focus of legislation was thus
strongly on the procedural mechanism for enforcing the substantive
right which was simultaneously conferred, we decline to conclude
that the substantive right may be viewed wholly apart from the
procedure provided for its enforcement. The employee's statutorily
defined right is not a guarantee against removal without cause in
the abstract, but such a guarantee as enforced by the procedures
which Congress has designated for the determination of cause.
The Court has previously viewed skeptically the action of a
litigant in challenging the constitutionality of portions
Page 416 U. S. 153
of a statute under which it has simultaneously claimed benefits.
In
Fahey v. Mallone, 332 U. S. 245
(1947), it was observed:
"In the name and right of the Association it is now being asked
that the Act under which it has its existence be struck down in
important particulars, hardly severable from those provisions which
grant its right to exist. . . . It would be intolerable that the
Congress should endow an association with the right to conduct a
public banking business on certain limitations and that the Court
at the behest of those who took advantage from the privilege should
remove the limitations intended for public protection. It would be
difficult to imagine a more appropriate situation in which to apply
the doctrine that one who utilizes an Act to gain advantages of
corporate existence is estopped from questioning the validity of
its vital conditions."
Id. at
332 U. S.
255-256.
"It is an elementary rule of constitutional law that one may not
'retain the benefits of an Act while attacking the
constitutionality of one of its important conditions."
United States v. San Francisco, 310 U. S.
16,
310 U. S. 29. As
formulated by Mr. Justice Brandeis, concurring in
Ashwander v.
Tennessee Valley Authority, 297 U. S. 288,
297 U. S. 348,
"The Court will not pass upon the constitutionality of a statute at
the instance of one who has availed himself of its benefits."
Id. at
332 U. S.
255.
This doctrine has unquestionably been applied unevenly in the
past, and observed as often as not in the breach. We believe that,
at the very least, it gives added weight to our conclusion that,
where the grant of a substantive right is inextricably intertwined
with the limitations on the procedures which are to be employed
in
Page 416 U. S. 154
determining that right, a litigant in the position of appellee
must take the bitter with the sweet.
To conclude otherwise would require us to hold that, although
Congress chose to enact what was essentially a legislative
compromise, and with unmistakable clarity granted governmental
employees security against being dismissed without "cause," but
refused to accord them a full adversary hearing for the
determination of "cause," it was constitutionally disabled from
making such a choice. We would be holding that federal employees
had been granted, as a result of the enactment of the Lloyd-La
Follette Act, not merely that which Congress had given them in the
first part of a sentence, but that which Congress had expressly
withheld from them in the latter part of the same sentence. Neither
the language of the Due Process Clause of the Fifth Amendment nor
our cases construing it require any such hobbling restrictions on
legislative authority in this area.
Appellees urge that the judgment of the District Court must be
sustained on the authority of cases such as
Goldberg v.
Kelly, 397 U. S. 254
(1970),
Fuentes v. Shevin, 407 U. S.
67 (1972),
Bell v. Burson, 402 U.
S. 535 (1971), and
Sniadach v. Family Finance
Corp., 395 U. S. 337
(1969).
Goldberg held that welfare recipients are entitled
under the Due Process Clause of the Fifth and Fourteenth Amendments
to an adversary hearing before their benefits are terminated.
Fuentes v. Shevin held that a hearing was generally
required before one could have his property seized under a writ of
replevin. In
Bell v. Burson, the Court held that due
process required a procedure for determining whether there was a
reasonable possibility of a judgment against a driver as a result
of an accident before his license and vehicle registration could be
suspended for failure to post security under Georgia's uninsured
motorist statute. And in
Sniadach
Page 416 U. S. 155
v. Family Finance Corp., a Wisconsin statute providing
for prejudgment garnishment without notice to the debtor or prior
hearing was struck down as violative of the principles of due
process. These cases deal with areas of the law dissimilar to one
another and dissimilar to the area of governmental employer
employee relationships with which we deal here. The types of
"liberty" and "property" protected by the Due Process Clause vary
widely, and what may be required under that Clause in dealing with
one set of interests which it protects may not be required in
dealing with another set of interests.
"The very nature of due process negates any concept of
inflexible procedures universally applicable to every imaginable
situation."
Cafeteria Workers v. McElroy, 367 U.S. at
367 U. S. 895.
Here, the property interest which appellee had in his employment
was itself conditioned by the procedural limitations which had
accompanied the grant of that interest. The Government might, then,
under our holdings dealing with Government employees in
Roth,
supra, and
Sindermann, supra, constitutionally deal
with appellee's claims as it proposed to do here. [
Footnote 21]
Page 416 U. S. 156
Appellee also contends in this Court that, because of the nature
of the charges on which his dismissal was based, he was, in effect,
accused of dishonesty, and that, therefore, a hearing was required
before he could be deprived of this element of his "liberty"
protected by the Fifth Amendment against deprivation without due
process. In
Board of Regents v. Roth, 408 U.S. at
408 U. S. 573,
we said:
"The State, in declining to rehire the respondent, did not make
any charge against him that might seriously damage his standing and
associations in his community. It did not base the nonrenewal
of
Page 416 U. S. 157
his contract on a charge, for example, that he had been guilty
of dishonesty, or immorality. . . . In such a case, due process
would accord an opportunity to refute the charge before university
officials. [
Footnote
22]"
The liberty here implicated by appellants' action is not the
elemental freedom from external restraint such as was involved in
Morrissey v. Brewer, 408 U. S. 471
(1972), but is instead a subspecies of the right of the individual
"to enjoy those privileges long recognized . . . as essential to
the orderly pursuit of happiness by free men."
Meyer v.
Nebraska, 262 U. S. 390,
262 U. S. 399
(1923). But that liberty is not offended by dismissal from
employment itself, but instead by dismissal based upon an
unsupported charge which could wrongfully injure the reputation of
an employee. Since the purpose of the hearing in such a case is to
provide the person "an opportunity to clear his name," a hearing
afforded by administrative appeal procedures after the actual
dismissal is a sufficient compliance with the requirements of the
Due Process Clause. Here, appellee chose not to rely on his
administrative appeal, which, if his factual contentions are
correct, might well have vindicated his reputation and removed any
wrongful stigma from his reputation.
Appellee urges that the delays in processing agency and Civil
Service Commission appeals, amounting to more than three months in
over 50% of agency appeals, [
Footnote 23] mean that the available administrative
appeals do not
Page 416 U. S. 158
suffice to protect his liberty interest recognized in
Roth. During the pendency of his administrative appeals,
appellee asserts, a discharged employee suffers from both the
stigma and the consequent disadvantage in obtaining a comparable
job that result from dismissal for cause from Government
employment. We assume that some delay attends vindication of an
employee's reputation throughout the hearing procedures provided on
appeal, and conclude that at least the delays cited here do not
entail any separate deprivation of a liberty interest. recognized
in
Roth.
III
Appellee also contends that the provisions of 5 U.S.C. §
7501(a), authorizing removal or suspension without pay "for such
cause as will promote the efficiency of the service," are vague and
overbroad. The District Court accepted this contention:
"Because employees faced with the standard of 'such cause as
will promote the efficiency of the service' can only guess as to
what utterances may cost them their jobs, there can be little
question that they will be deterred from exercising their First
Amendment rights to the fullest extent."
349 F. Supp. at 866.
A certain anomaly attends appellee's substantive constitutional
attack on the Lloyd-La Follette Act, just as it does his attack on
its procedural provisions. Prior to the enactment of this language
in 1912, there was no such statutory inhibition on the authority of
the Government to discharge a federal employee, and an employee
could be discharged with or without cause for conduct which was not
protected under the First Amendment. Yet under the District Court's
holding, a federal employee, after the enactment of the Lloyd-La
Follette Act, may not even be discharged for conduct which
constitutes "cause" for discharge and which is not protected
Page 416 U. S. 159
by the First Amendment, because the guarantee of job security
which Congress chose to accord employees is "vague" and
"overbroad."
We hold the standard of "cause" set forth in the Lloyd-La
Follette Act as a limitation on the Government's authority to
discharge federal employees is constitutionally sufficient against
the charges both of overbreadth and of vagueness. In
CSC v.
Letter Carriers, 413 U. S. 548,
413 U. S.
578-579 (1973), we said:
"[T]here are limitations in the English language with respect to
being both specific and manageably brief, and it seems to us that,
although the prohibitions may not satisfy those intent on finding
fault at any cost, they are set out in terms that the ordinary
person exercising ordinary common sense can sufficiently understand
and comply with, without sacrifice to the public interest."
"[T]he general class of offense to which . . . [the provisions
are] directed is plainly within [their] terms . . . , [and they]
will not be struck down as vague even though marginal cases could
be put where doubts might arise."
"
United States v. Harriss, 347 U. S.
612,
347 U. S. 618 (1954)."
Congress sought to lay down an admittedly general standard not
for the purpose of defining criminal conduct, but in order to give
myriad different federal employees performing widely disparate
tasks a common standard of job protection. We do not believe that
Congress was confined to the choice of enacting a detailed code of
employee conduct or else granting no job protection at all. As we
said in
Colten v. Kentucky, 407 U.
S. 104 (1972):
"The root of the vagueness doctrine is a rough idea of fairness.
It is not a principle designed to convert into a constitutional
dilemma the practical difficulties
Page 416 U. S. 160
in drawing criminal statutes both general enough to take into
account a variety of human conduct and sufficiently specific to
provide fair warning that certain kinds of conduct are
prohibited."
Id. at
401 U. S. 110.
Here, the language "such cause as will promote the efficiency of
the service" was not written upon a clean slate in 1912, and it
does not appear on a clean slate now. The Civil Service Commission
has indicated that what might be said to be longstanding principles
of employer-employee relationships, like those developed in the
private sector, should be followed in interpreting the language
used by Congress. [
Footnote
24] Moreover, the OEO has provided by regulation that its
Office of General Counsel is available to counsel employees who
seek advice on the interpretation of the Act and its regulations.
[
Footnote 25] We found the
similar procedure offered by the Civil Service Commission important
in rejecting the respondents' vagueness contentions in
CSC v.
Letter Carriers, 413 U.S. at
413 U. S.
580.
The phrase "such cause as will promote the efficiency of the
service," as a standard of employee job protection, is without
doubt intended to authorize dismissal for speech as well as other
conduct.
Pickering v. Board of Education, 391 U.
S. 563,
391 U. S. 568
(1968), makes it clear that, in certain situations, the discharge
of a Government employee may be based on his speech without
offending guarantees of the First Amendment:
"At the same time, it cannot be gainsaid that the State has
interests as an employer in regulating the
Page 416 U. S. 161
speech of its employees that differ significantly from those it
possesses in connection with regulation of the speech of the
citizenry in general. The problem in any case is to arrive at a
balance between the interests of the teacher, as a citizen, in
commenting upon matters of public concern and the interest of the
State, as an employer, in promoting the efficiency of the public
services it performs through its employees."
Because of the infinite variety of factual situations in which
public statements by Government employees might reasonably justify
dismissal for "cause," we conclude that the Act describes, as
explicitly as is required, the employee conduct which is ground for
removal. The essential fairness of this broad and general removal
standard, and the impracticability of greater specificity, were
recognized by Judge Leventhal, writing for a panel of the United
States Court of Appeals for the District of Columbia Circuit in
Meehan v. Macy, 129 U.S.App.D.C. 217, 230, 392 F.2d 822,
835 (1968),
modified, 138 U.S.App.D.C. 38, 425 F.2d 469,
aff'd en banc, 138 U.S.App.D.C. 41, 425 F.2d 472
(1969):
"[I]t is not feasible or necessary for the Government to spell
out in detail all that conduct which will result in retaliation.
The most conscientious of codes that define prohibited conduct of
employees include 'catchall' clauses prohibiting employee
'misconduct,' 'immorality,' or 'conduct unbecoming.' We think it is
inherent in the employment relationship as a matter of common
sense, if not [of] common law, that [a Government] employee . . .
cannot reasonably assert a right to keep his job while at the same
time he inveighs against his superiors in public with intemperate
and defamatory [cartoons]. . . . [Dismissal in such
circumstances
Page 416 U. S. 162
neither] comes as an unfair surprise [nor] is so unexpected as
to chill . . . freedom to engage in appropriate speech."
Since Congress, when it enacted the Lloyd-La Follette Act, did
so with the intention of conferring job protection rights on
federal employees which they had not previously had, it obviously
did not intend to authorize discharge under the Act's removal
standard for speech which is constitutionally protected. The Act
proscribes only that public speech which improperly damages and
impairs the reputation and efficiency of the employing agency, and
it thus imposes no greater controls on the behavior of federal
employees than are necessary for the protection of the Government
as an employer. Indeed, the Act is not directed at speech as such,
but at employee behavior, including speech, which is detrimental to
the efficiency of the employing agency. We hold that the language
"such cause as will promote the efficiency of the service" in the
Act excludes constitutionally protected speech, and that the
statute is therefore not overbroad.
Colten v. Kentucky,
407 U.S. at
407 U. S. 111.
We have observed previously that the Court has a duty to construe a
federal statute to avoid constitutional questions where such a
construction is reasonably possible.
United States v. 12
200-ft. Reels of Film, 413 U. S. 123,
413 U. S. 130
n. 7 (1973);
United States v. Thirty-seven Photographs,
402 U. S. 363,
402 U. S.
368-369 (1971).
We have no hesitation, as did the District Court, in saying
that, on the facts alleged in the administrative charges against
appellee, the appropriate tribunal would infringe no constitutional
right of appellee in concluding that there was "cause" for his
discharge.
Pickering v. Board of Education, 391 U.S. at
391 U. S. 569.
Nor have we any doubt that satisfactory proof of these allegations
could constitute "such cause as will promote the efficiency
Page 416 U. S. 163
of the service" within the terms of 5 U.S.C. § 7501(a).
Appellee's contention then boils down to the assertion that,
although no constitutionally protected conduct of his own was the
basis for his discharge on the Government's version of the facts,
the statutory language in question must be declared inoperative,
and a set of more particularized regulations substituted for it,
because the generality of its language might result in marginal
situations in which other persons seeking to engage in
constitutionally protected conduct would be deterred from doing so.
But we have held that Congress, in establishing a standard of
"cause" for discharge, did not intend to include within that term
any constitutionally protected conduct. We think that our statement
in
Colten v. Kentucky is a complete answer to appellee's
contention:
"As we understand this case, appellant's own conduct was not
immune under the First Amendment, and neither is his conviction
vulnerable on the ground that the statute threatens
constitutionally protected conduct of others."
407 U.S. at
407 U. S.
111.
In sum, we hold that the Lloyd-La Follette Act, in at once
conferring upon nonprobationary federal employees the right not to
be discharged except for "cause" and prescribing the procedural
means by which that right was to be protected, did not create an
expectancy of job retention in those employees requiring procedural
protection under the Due Process Clause beyond that afforded here
by the statute and related agency regulations. We also conclude
that the post-termination hearing procedures provided by the Civil
Service Commission and the OEO adequately protect those federal
employees' liberty interest, recognized in
Roth, supra, in
not being wrongfully stigmatized by untrue and unsupported
administrative charges. Finally, we hold that
Page 416 U. S. 164
the standard of employment protection imposed by Congress in the
Lloyd-La Follette Act is not impermissibly vague or overbroad in
its regulation of the speech of federal employees, and therefore
unconstitutional on its face. Accordingly, we reverse the decision
of the District Court on both grounds on which it granted summary
judgment, and remand for further proceedings not inconsistent with
this opinion.
Reversed and remanded.
[
Footnote 1]
"Appellee" refers to appellee Wayne Kennedy, the named plaintiff
in the original complaint. The participation of the 18 other named
plaintiffs, who were added in the amended complaint,
see
n 3,
infra, appears to
have been little more than nominal. The amended complaint alleged
that the added named plaintiffs' exercise of their rights of free
speech were chilled because they feared that any off-duty public
comments made by them would constitute grounds for discharge or
punishment under the Lloyd-La Follette Act. Two conclusory
affidavits supporting that bare allegation (one signed by one of
the added named plaintiffs, the other by the remaining 17) were
filed in connection with plaintiffs' motion for summary judgment or
temporary injunctive relief.
[
Footnote 2]
Appellee's response to the "Notification of Proposed Adverse
Action," made through counsel, set forth briefly his position that
the charges against him were unlawful under the Fifth and First
Amendments. One of the three sentences devoted to his First
Amendment claim noted parenthetically that the "conversations . . .
with union members and the public" for which he was being punished
were "inaccurately set forth in the adverse action." Appellee's
response did not explain in what respects the charges against him
were inaccurate, nor did it offer any alternative version of the
events described in the charges.
[
Footnote 3]
Appellee's original complaint, filed March 27, 1972, contained
two counts. In the first count, appellee sought, on behalf of
himself and others similarly situated, to enjoin his removal
pending a full, trial-type hearing before an impartial hearing
officer. In the second count, appellee sought to enjoin his removal
for the exercise of his rights of free speech. The single-judge
court referred the constitutional question presented in the first
count to a three-judge court, and dismissed the second count
pending appellee's exhaustion of available administrative remedies
before the Civil Service Commission. Appellee then amended the
second count of his complaint to allege, on behalf of himself, 18
added named plaintiffs,
see n 1,
supra, and others similarly situated, that
the Lloyd-La Follette Act's removal standard was unconstitutionally
vague and overbroad, and violated the plaintiffs' First Amendment
rights.
[
Footnote 4]
The court ordered appellee's reinstatement, but deferred
determination whether the suit was maintainable as a class action.
Appellee's appeal to the Civil Service Commission was first delayed
as a result of the pendency of this suit, then "terminated" because
of appellee's reinstatement following the decision of the District
Court.
[
Footnote 5]
5 CFR §§ 735.201a, 735.209. Section 735.201a provides:
"An employee shall avoid any action, whether or not specifically
prohibited by this subpart, which might result in, or create the
appearance of:"
"(a) Using public office for private gain:"
"(b) Giving preferential treatment to any person;"
"(c) Impeding Government efficiency or economy;"
"(d) Losing complete independence or impartiality;"
"(e) Making a Government decision outside official channels;
or"
"(f) Affecting adversely the confidence of the public in the
integrity of the Government."
Section 735.209 provides:
"An employee shall not engage in criminal, infamous, dishonest,
immoral, or notoriously disgraceful conduct, or other conduct
prejudicial to the Government."
[
Footnote 6]
45 CFR §§ 1015.735-1, 1015.735-24. Section 1015.735-1
provides:
"The purpose of this part is to guide OEO employees toward
maintaining the high standard of integrity expected of all
Government employees. It is intended to require that employees
avoid any action which might result in, or create the appearance
of:"
"(a) Using public office for private gain;"
"(b) Giving preferential treatment to any organization or
person;"
"(c) Impeding Government efficiency or economy;"
"(d) Making a Government decision outside official
channels;"
"(e) Losing complete independence or impartiality of action;
or"
"(f) Affecting adversely the confidence of the public in the
integrity of OEO and the Government."
Section 1015.735-24 provides:
"No employee shall engage in criminal, infamous, dishonest,
immoral, or notoriously disgraceful conduct or other conduct
prejudicial to the Government."
[
Footnote 7]
45 CFR § 1015.735-4. Section 1015.735-4 provides:
"The Office of General Counsel of OEO is available to advise on
the interpretation of the provisions of this part and the other
laws and regulations relevant to the conduct of OEO employees. The
General Counsel is designated as OEO counselor for this
purpose."
[
Footnote 8]
The Civil Service Commission regulations governing procedures
for adverse actions implement, in addition to the Lloyd-La Follette
Act, the Veterans' Preference Act of 1944 and Executive Order No.
11491. The Veterans' Preference Act, Act of June 27, 1944, c. 287,
58 Stat. 387, imposed procedural requirements for processing
adverse actions in addition to those imposed by the Lloyd-La
Follette Act. Those additional requirements include an opportunity
for the employee to respond orally or in writing to the charges on
which his dismissal is based; the Veterans' Preference Act also
authorizes Civil Service Commission appeals from adverse agency
decisions.
See 5 U.S.C. § 7701. The Act itself applies
only to veterans of military service, 5 U.S.C. §§ 2108, 7511, but
Executive Order No. 11491, printed in note following 5 U.S.C. §
7301, extends the Act's protections to all nonpreference eligible
employees in the classified service.
[
Footnote 9]
5 CFR § 752.202(a). Section 752.202(a) provides:
"(a)
Notice of proposed adverse action. (1) Except as
provided in paragraph (c) of this section, an employee against whom
adverse action is sought is entitled to at least 30 full days'
advance written notice stating any and all reasons, specifically
and in detail, for the proposed action."
"(2) Subject to the provisions of subparagraph (3) of this
paragraph, the material on which the notice is based and which is
relied on to support the reasons in that notice, including
statements of witnesses, documents, and investigative reports or
extracts therefrom, shall be assembled and made available to the
employee for his review. The notice shall inform the employee where
he may review that material."
"(3) Material which cannot be disclosed to the employee, or to
his designated physician under § 294.401 of this chapter, may not
be used by an agency to support the reasons in the notice."
[
Footnote 10]
5 CFR § 752.202(b). Section 752.202(b) provides:
"(b)
Employee's answer. Except as provided in paragraph
(c) of this section, an employee is entitled to a reasonable time
for answering a notice of proposed adverse action and for
furnishing affidavits in support of his answer. The time to be
allowed depends on the facts and circumstances of the case, and
shall be sufficient to afford the employee ample opportunity to
review the material relied on by the agency to support the reasons
in the notice and to prepare an answer and secure affidavits. The
agency shall provide the employee a reasonable amount of official
time for these purposes if he is otherwise in an active duty
status. If the employee answers, the agency shall consider his
answer in reaching its decision. The employee is entitled to answer
personally or in writing, or both personally and in writing. The
right to answer personally includes the right to answer orally in
person by being given a reasonable opportunity to make any
representations which the employee believes might sway the final
decision on his case, but does not include the right to a trial or
formal hearing with examination of witnesses. When the employee
requests an opportunity to answer personally, the agency shall make
a representative or representatives available to hear his answer.
The representative or representatives designated to hear the answer
shall be persons who have authority either to make a final decision
on the proposed adverse action or to recommend what final decision
should be made."
[
Footnote 11]
^11 5 CFR § 752.202(f). Section 752.202(f) provides:
"(f)
Notice of adverse decision. The employee is
entitled to notice of the agency's decision at the earliest
practicable date. The agency shall deliver the notice of decision
to the employee at or before the time the action will be made
effective. The notice shall be in writing, be dated, and inform the
employee:"
"(1) Which of the reasons in the notice of proposed adverse
action have been found sustained and which have been found not
sustained;"
"(2) Of his right of appeal to the appropriate office of the
Commission;"
"(3) Of any right of appeal to the agency under Subpart B of
Part 771 of this chapter, including the person with whom, or the
office with which, such an appeal shall be filed;"
"(4) Of the time limit for appealing as provided in §
752.204;"
"(5) Of the restrictions on the use of appeal rights as provided
in § 752.205; and"
"(6) Where he may obtain information on how to pursue an
appeal."
[
Footnote 12]
5 CFR §§ 771.205, 771.208. Section 771.205 provides:
"An employee is entitled to appeal under the agency appeals
system from the original decision. The agency shall accept and
process a properly filed appeal in accordance with its appeals
system."
Section 771.208 provides:
"(a)
Entitlement. Except as provided in paragraph (b)
of this section, an employee is entitled to a hearing on his appeal
before an examiner. The employee is entitled to appear at the
hearing personally or through or accompanied by his representative.
The hearing may precede either the original decision or the
appellate decision, at the agency's option. Only one hearing shall
be held unless the agency determines that unusual circumstances
require a second hearing."
"(b)
Denial of hearing. The agency may deny an employee
a hearing on his appeal only (1) when a hearing is impracticable by
reason of unusual location or other extraordinary circumstance, or
(2) when the employee failed to request a hearing offered before
the original decision."
"(c)
Notice. The agency shall notify an employee in
writing before the original decision or before the appellate
decision of (1) his right to a hearing, or (2) the reasons for the
denial of a hearing."
[
Footnote 13]
5 CFR § 752.203. Section 752.203 provides:
"An employee is entitled to appeal to the Commission from an
adverse action covered by this subpart. The appeal shall be in
writing, and shall set forth the employee's reasons for contesting
the adverse action, with such offer of proof and pertinent
documents as he is able to submit."
Appeals to both the discharging agency and the Commission from
an original adverse action will not be processed concurrently, 5
CFR § 752.205(a), and a direct appeal to the Commission from an
initial removal decision constitutes a waiver of appeal rights
within the employing agency. 5 CFR § 752.205(b). However, if the
employee first appeals within the employing agency, he is entitled,
if necessary, to an appeal to the Commission. 5 CFR §
752.205(c).
[
Footnote 14]
5 CFR §§ 771.208, 771.210-771.212, 772.305(c). Sections
771.210-771.212 govern the conduct of hearings by the discharging
agency. Those sections provide:
"§ 771.210 Conduct of hearing."
"(a) The hearing is not open to the public or the press. Except
as provided in paragraph( h) of this section, attendance at a
hearing is limited to persons determined by the examiner to have a
direct connection with the appeal."
"(b) The hearing is conducted so as to bring out pertinent
facts, including the production of pertinent records."
"(c) Rules of evidence are not applied strictly, but the
examiner shall exclude irrelevant or unduly repetitious
testimony."
"(d) Decisions on the admissibility of evidence or testimony are
made by the examiner."
"(e) Testimony is under oath or affirmation."
"(f) The examiner shall give the parties opportunity to
cross-examine witnesses who appear and testify."
"(g) The examiner may exclude any person from the hearing for
contumacious conduct or misbehavior that obstructs the
hearing."
"(h) An agency may provide through a negotiated agreement with a
labor organization holding exclusive recognition for the attendance
at hearings under this subpart of an observer from that
organization. When attendance is provided for, the agreement shall
further provide that, when the employee who requested the hearing
objects to the attendance of an observer on grounds of privacy, the
examiner shall determine the validity of the objection and make the
decision on the question of attendance."
"§ 771.211 Witnesses."
"(a) Both parties are entitled to produce witnesses."
"(b) The agency shall make its employees available as witnesses
before an examiner when requested by the examiner after
consideration of a request by the employee or the agency."
"(c) If the agency determines that it is not administratively
practicable to comply with the request of the examiner, it shall
notify him in writing of the reasons for that determination. If, in
the examiner's judgment, compliance with his request is essential
to a full and fair hearing, he may postpone the hearing until such
time as the agency complies with his request."
"(d) Employees of the agency are in a duty status during the
time they are made available as witnesses."
"(e) The agency shall assure witnesses freedom from restraint,
interference, coercion, discrimination, or reprisal in presenting
their testimony."
"§ 771.212 Record of hearing."
"(a) The hearing shall be recorded and transcribed verbatim. All
documents submitted to and accepted by the examiner at the hearing
shall be made a part of the record of the hearing. If the agency
submits a document that is accepted, it shall furnish a copy of the
document to the employee. If the employee submits a document that
is accepted, he shall make the document available to the agency
representative for reproduction."
"(b) The employee is entitled to be furnished a copy of the
hearing record at or before the time he is furnished a copy of the
report of the examiner."
Section 772.305(c) governs the conduct of hearings before the
Civil Service Commission. It provides:
"(c)
Hearing procedures. (1) An appellant is entitled
to appear at the hearing on his appeal personally or through or
accompanied by his representative. The agency is also entitled to
participate in the hearing. Both parties are entitled to produce
witnesses. The Commission is not authorized to subpoena
witnesses."
"(2) An agency shall make its employees available as witnesses
at the hearing when (i) requested by the Commission after
consideration of a request by the appellant or the agency and (ii)
it is administratively practicable to comply with the request of
the Commission. If the agency determines that it is not
administratively practicable to comply with the request of the
Commission, it shall submit to the Commission its written reasons
for the declination. Employees of the agency shall be in a duty
status during the time they are made available as witnesses.
Employees of the agency shall be free from restraint, interference,
coercion, discrimination, or reprisal in presenting their
testimony."
"(3) Hearings are not open to the public or the press.
Attendance at hearings is limited to persons determined by the
Commission to have a direct connection with the appeal."
"(4) A representative of the Commission shall conduct the
hearing and shall afford the parties opportunity to introduce
evidence (including testimony and statements by the appellant, his
representative, representatives of the agency, and witnesses), and
to cross-examine witnesses. Testimony is under oath or affirmation.
Rules of evidence are not applied strictly, but the representative
of the Commission shall exclude irrelevant or unduly repetitious
testimony."
"(5) The office of the Commission having initial jurisdiction of
the appeal shall determine how the hearing will be reported. When
the hearing is reported verbatim, that office shall make the
transcript a part of the record of the proceedings and shall
furnish a copy of the transcript to each party. When the hearing is
not reported verbatim, the representative of the Commission who
conducts the hearing shall make a suitable summary of the pertinent
portions of the testimony. When agreed to in writing by the
parties, the summary constitutes the report of the hearing and is
made a part of the record of the proceedings. Each party is
entitled to be furnished a copy of the report of the hearing. If
the representative of the Commission and the parties fail to agree
on the summary, the parties are entitled to submit written
exceptions to any parts of the summary which are made a part of the
record of the proceedings for consideration in deciding the
appeal."
[
Footnote 15]
OEO Staff Instruction No. 771-2 (1971).
[
Footnote 16]
5 U.S.C. § 5596.
[
Footnote 17]
Act of Jan. 16, 1883, c. 27, 22 Stat. 403.
[
Footnote 18]
Id. § 2.
[
Footnote 19]
Fifteenth Report of the Civil Service Commission 70 (1897-1898).
Rule II, § 8, provided:
"No removal shall be made from any position subject to
competitive examination except for just cause and upon written
charges filed with the head of the Department or other appointing
officer, and of which the accused shall have full notice and an
opportunity to make defense."
[
Footnote 20]
Act of Aug. 24, 1912, c. 389, § 6, 37 Stat. 555.
[
Footnote 21]
Our Brother WHITE would hold that Verduin himself might not make
the initial decision as to removal on behalf of the agency, because
he was the victim of the alleged slander which was one of the bases
for appellee's removal. Because of our holding with respect to
appellee's property-type expectations under
Roth and
Sindermann, we do not reach this question in its
constitutional dimension. But since our Brother WHITE suggests that
he reaches that conclusion as a matter of statutory construction,
albeit because of constitutional emanations, we state our reasons
for disagreeing with his conclusion. We, of course, find no
constitutional overtones lurking in the statutory issue, because of
our holding as to the nature of appellee's property interest in his
employment. The reference in the Lloyd-La Follette Act itself to
the discretion "of the officer making the removal" suggests rather
strongly that he is likewise the officer who will have brought the
charges, and there is no indication that, during the 60 years'
practice under the Act, it has ever been administratively construed
to require the initial hearing on the discharge to be before any
official other than the one making the charges. And while our
Brother WHITE's statement of his conclusion suggests that it may be
limited to facts similar to those presented here,
post at
416 U. S. 199,
we doubt that, in practice it could be so confined. The decision of
an employee's supervisor to dismiss an employee "for such cause as
will promote the efficiency of the service" will all but invariably
involve a somewhat subjective judgment on the part of the
supervisor that the employee's performance is not "up to snuff."
Employer-employee disputes of this sort can scarcely avoid
involving clashes of personalities, and while a charge that an
employee has defamed a supervisor may generate a maximum of
personal involvement on the part of the latter, a statement of more
typical charges will necessarily engender some degree of personal
involvement on the part of the supervisor.
Additional difficulties in applying our Brother WHITE's standard
would surely be found if the official bringing the charges were
himself the head of a department or an agency, for, in that event,
none of his subordinates could be assumed to have a reasonable
degree of detached neutrality, and the initial hearing would
presumably have to be conducted by someone wholly outside of the
department or agency. We do not believe that Congress, clearly
indicating as it did in the Lloyd-LaFollette Act its preference for
relatively simple procedures, contemplated or required the
complexities which would be injected into the Act by our Brother
WHITE.
[
Footnote 22]
The Court's footnote there stated:
"The purpose of such notice and hearing is to provide the person
an opportunity to clear his name. Once a person has cleared his
name at a hearing, his employer, of course, may remain free to deny
him future employment for other reasons."
408 U.S. at
408 U. S. 573
n. 12.
[
Footnote 23]
See Merrill, Procedures for Adverse Actions Against
Federal Employees, 59 Va.L.Rev.196, 206 (1973).
[
Footnote 24]
The Federal Personnel Manual, Subchapter S3-1. a., states:
"Basically a 'cause' for disciplinary adverse action is a
recognizable offense against the employer employee relationship.
Causes for adverse action run the entire gamut of offenses against
the employer-employee relationship, including inadequate
performance of duties and improper conduct on or off the job. . .
."
Supp. 752-1, Adverse Action by Agencies, Feb.1972.
[
Footnote 25]
See n 7,
supra.
MR. JUSTICE POWELL, with whom MR. JUSTICE BLACKMUN joins,
concurring in part and concurring in the result in part.
For the reasons stated by MR. JUSTICE REHNQUIST, I agree that
the provisions of S U.S.C. § 7501(a) are neither unconstitutionally
vague nor overbroad. I also agree that appellee's discharge did not
contravene the Fifth Amendment guarantee of procedural due process.
Because I reach that conclusion on the basis of different
reasoning, I state my views separately.
I
The applicability of the constitutional guarantee of procedural
due process depends in the first instance on the presence of a
legitimate "property" or "liberty" interest within the meaning of
the Fifth or Fourteenth Amendment. Governmental deprivation of such
an interest must be accompanied by minimum procedural safeguards,
including some form of notice and a hearing. [
Footnote 2/1]
Page 416 U. S. 165
The Court's decisions in
Board of Regents v. Roth,
408 U. S. 564
(1972), and
Perry v. Sindermann, 408 U.
S. 593 (1972), provide the proper framework for analysis
of whether appellee's employment constituted a "property" interest
under the Fifth Amendment. In
Roth, the Court stated:
"To have a property interest in a benefit, a person clearly must
have more than an abstract need or desire for it. He must have more
than a unilateral expectation of it. He must, instead, have a
legitimate claim of entitlement to it. It is a purpose of the
ancient institution of property to protect those claims upon which
people rely in their daily lives, reliance that must not be
arbitrarily undermined. It is a purpose of the constitutional right
to a hearing to provide an opportunity for a person to vindicate
those claims."
"Property interests, of course, are not created by the
Constitution. Rather, they are created and their dimensions are
defined by existing rules or understandings that stem from an
independent source such as state law -- rules or understandings
that secure certain benefits and that support claims of entitlement
to those benefits."
408 U.S. at
408 U. S. 577.
The Court recognized that the "wooden distinction" between "rights"
and "privileges" was not determinative of the applicability of
procedural due process, and that a property interest may be created
by statute, as well as by contract.
Id. at
408 U. S. 571.
In particular, the Court stated that a person may have a protected
property interest in public employment if contractual or statutory
provisions guarantee continued employment absent "sufficient cause"
for discharge.
Id. at
408 U. S.
576-578.
In
Sindermann, the Court again emphasized that a person
may have a protected property interest in continued
Page 416 U. S. 166
public employment. There, a state college teacher alleged that
the college had established a
de facto system of tenure
and that he had obtained tenure under that system. The Court stated
that proof of these allegations would establish the teacher's
legitimate claim of entitlement to continued employment absent
"sufficient cause" for discharge. In these circumstances, the
teacher would have a property interest safeguarded by due process,
and deprivation of that interest would have to be accompanied by
some form of notice and a hearing.
Application of these precedents to the instant case makes plain
that appellee is entitled to invoke the constitutional guarantee of
procedural due process. Appellee was a nonprobationary federal
employee, and, as such, he could be discharged only for "cause." 5
U.S.C. § 7501(a). The federal statute guaranteeing appellee
continued employment absent "cause" for discharge conferred on him
a legitimate claim of entitlement which constituted a "property"
interest under the Fifth Amendment. Thus, termination of his
employment requires notice and a hearing.
The plurality opinion evidently reasons that the nature of
appellee's interest in continued federal employment is necessarily
defined and limited by the statutory procedures for discharge, and
that the constitutional guarantee of procedural due process accords
to appellee no procedural protections against arbitrary or
erroneous discharge other than those expressly provided in the
statute. The plurality would thus conclude that the statute
governing federal employment determines not only the nature of
appellee's property interest, but also the extent of the procedural
protections to which he may lay claim. It seems to me that this
approach is incompatible with the principles laid down in
Roth and
Sindermann. Indeed, it would lead
directly to the conclusion that, whatever the nature
Page 416 U. S. 167
of an individual's statutorily created property interest,
deprivation of that interest could be accomplished without notice
or a hearing at any time. This view misconceives the origin of the
right to procedural due process. That right is conferred not by
legislative grace, but by constitutional guarantee. While the
legislature may elect not to confer a property interest in federal
employment, [
Footnote 2/2] it may
not constitutionally authorize the deprivation of such an interest,
once conferred, without appropriate procedural safeguards. As our
cases have consistently recognized, the adequacy of statutory
procedures for deprivation of a statutorily created property
interest must be analyzed in constitutional terms.
Goldberg v.
Kelly, 397 U. S. 254
(1970); [
Footnote 2/3]
Bell v.
Burson, 402 U. S. 535
(1971);
Board of Regents v. Roth, supra; Perry v. Sindermann,
supra.
II
Having determined that the constitutional guarantee of
procedural due process applies to appellee's discharge from public
employment, the question arises whether an evidentiary hearing,
including the right to present favorable witnesses and to confront
and examine adverse witnesses, must be accorded before removal. The
resolution of this issue depends on a balancing process in which
the Government's interest in expeditious removal
Page 416 U. S. 168
of an unsatisfactory employee is weighed against the interest of
the affected employee in continued public employment.
Goldberg
v. Kelly, supra, at
397 U. S.
263-266. As the Court stated in
Cafeteria &
Restaurant Workers v. McElroy, 367 U.
S. 886,
367 U. S. 895
(1961),
"consideration of what procedures due process may require under
any given set of circumstances must begin with a determination of
the precise nature of the government function involved, as well as
of the private interest that has been affected by governmental
action."
In the present case, the Government's interest, and hence the
public's interest, is the maintenance of employee efficiency and
discipline. Such factors are essential if the Government is to
perform its responsibilities effectively and economically. To this
end, the Government, as an employer, must have wide discretion and
control over the management of its personnel and internal affairs.
This includes the prerogative to remove employees whose conduct
hinders efficient operation and to do so with dispatch. Prolonged
retention of a disruptive or otherwise unsatisfactory employee can
adversely affect discipline and morale in the work place, foster
disharmony, and ultimately impair the efficiency of an office or
agency. Moreover, a requirement of a prior evidentiary hearing
would impose additional administrative costs, create delay, and
deter warranted discharges. Thus, the Government's interest in
being able to act expeditiously to remove an unsatisfactory
employee is substantial. [
Footnote
2/4]
Page 416 U. S. 169
Appellee's countervailing interest is the continuation of his
public employment pending an evidentiary hearing. Since appellee
would be reinstated and awarded backpay if he prevails on the
merits of his claim, appellee's actual injury would consist of a
temporary interruption of his income during the interim. To be
sure, even a temporary interruption of income could constitute a
serious loss in many instances. But the possible deprivation is
considerably less severe than that involved in
Goldberg,
for example, where termination of welfare benefits to the recipient
would have occurred in the face of "brutal need." 397 U.S. at
397 U. S. 261.
Indeed, as the Court stated in that case,
"the crucial factor in this context -- a factor not present in
the case of . . . the discharged government employee . . . -- is
that termination of aid pending resolution of a controversy over
eligibility may deprive an
eligible recipient of the very means
by which to live while he waits."
Id. at 264 (emphasis added). By contrast, a public
employee may well have independent resources to overcome any
temporary hardship, and he may be able to secure a Job in the
private sector. Alternatively, he will be eligible for welfare
benefits.
Page 416 U. S. 170
Appellee also argues that the absence of a prior evidentiary
hearing increases the possibility of wrongful removal, and that
delay in conducting a post-termination evidentiary hearing further
aggravates his loss. The present statute and regulations, however,
already respond to these concerns. The affected employee is
provided with 30 days' advance written notice of the reasons for
his proposed discharge and the materials on which the notice is
based. He is accorded the right to respond to the charges both
orally and in writing, including the submission of affidavits. Upon
request, he is entitled to an opportunity to appear personally
before the official having the authority to make or recommend the
final decision. Although an evidentiary hearing is not held, the
employee may make any representations he believes relevant to his
case. After removal, the employee receives a full evidentiary
hearing, and is awarded backpay if reinstated.
See 5 CFR
§§ 771.208 and 772.305; 5 U.S.C. § 5596. These procedures minimize
the risk of error in the initial removal decision and provide for
compensation for the affected employee should that decision
eventually prove wrongful. [
Footnote
2/5]
Page 416 U. S. 171
On balance, I would conclude that a prior evidentiary hearing is
not required, and that the present statute and regulations comport
with due process by providing a reasonable accommodation of the
competing interests. [
Footnote
2/6]
[
Footnote 2/1]
As the Court stated in
Boddie v. Connecticut,
401 U. S. 371,
401 U. S. 378
(1971),
"The formality and procedural requisites for [a due process]
hearing can vary, depending upon the importance of the interests
involved and the nature of the subsequent proceedings."
In this case, we are concerned with an administrative hearing in
the context of appellee's discharge from public employment.
[
Footnote 2/2]
No property interest would be conferred, for example, where the
applicable statutory or contractual terms, either expressly or by
implication, did not provide for continued employment absent
"cause."
See Board of Regents v. Roth, 408 U.
S. 564,
408 U. S. 578
(1972).
[
Footnote 2/3]
In
Goldberg, for example, the statutes and regulations
defined both eligibility for welfare benefits and the procedures
for termination of those benefits. The Court held that such
benefits constituted a statutory entitlement for persons qualified
to receive them and that the constitutional guarantee of procedural
due process applied to termination of benefits. 397 U.S. at
397 U. S.
261-263.
[
Footnote 2/4]
My Brother MARSHALL rejects the Government's interest in
efficiency as insignificant, citing
Goldberg v. Kelly,
397 U. S. 254,
397 U. S. 266
(1970), and
Fuentes v. Shevin, 407 U. S.
67,
407 U. S. 90-91,
n. 22 (1972). He also notes that nine federal agencies presently
accord prior evidentiary hearings.
Post at
416 U. S. 223,
416 U. S.
224.
Neither
Goldberg nor
Fuentes involved the
Government's substantial interest in maintaining the efficiency and
discipline of its own employees. Moreover, the fact that some
federal agencies may have decided to hold prior evidentiary
hearings cannot mean that such a procedure is constitutionally
mandated. The Federal Government's general practice to the contrary
argues that efficiency is, in fact, thought to be adversely
affected by prior evidentiary hearings.
Nor do I agree with my Brother WHITE's argument that suspension
with pay would obviate any problem posed by prolonged retention of
a disruptive or unsatisfactory employee. Aside from the additional
financial burden which would be imposed on the Government, this
procedure would undoubtedly inhibit warranted discharges and weaken
significantly the deterrent effect of immediate removal. In
addition, it would create a strong incentive for the suspended
employee to attempt to delay final resolution of the issues
surrounding his discharge.
[
Footnote 2/5]
My Brother WHITE argues that affirmance is required because the
supervisory official who would have conducted the pre-removal
hearing was the "object of slander that was the basis for the
employee's proposed discharge."
Post at
416 U. S. 199.
He would conclude that this violated the statutory requirement of
an "impartial decisionmaker." I find no such requirement anywhere
in the statute or the regulations. Nor do I believe that due
process so mandates at the pre-removal stage. In my view, the
relevant fact is that an impartial decisionmaker is provided at the
post-removal hearing where the employee's claims are finally
resolved.
There are also significant practical considerations that argue
against such a requirement. In most cases, the employee's
supervisor is the official best informed about the "cause" for
termination. If disqualification is required on the ground that the
responsible supervisor could not be wholly impartial, the removal
procedure would become increasingly complex. In effect, a
"mini-trial" would be necessary to educate the impartial
decisionmaker as to the basis for termination.
[
Footnote 2/6]
Appellee also argues that the failure to provide a prior
evidentiary hearing deprived him of his "liberty" interest in
violation of the Fifth Amendment. For the reasons stated above, I
find that the present statute comports with due process even with
respect to appellee's liberty interest.
MR JUSTICE WHITE, concurring in part and dissenting in part.
The Lloyd-La Follette Act, 5 U.S.C. § 7501(a), provides that
"[a]n individual in the competitive service may be removed or
suspended without pay only for such cause as will promote the
efficiency of the service. [
Footnote
3/1]"
The
Page 416 U. S. 172
regulations of the Civil Service Commission and the Office of
Economic Opportunity (OEO), at which appellee was employed, give
content to "cause" by specifying grounds for removal which include
"any action . . . which might result in . . . [a]ffecting adversely
the confidence of the public in the integrity of [OEO and] the
Government" and any "criminal, infamous, dishonest, immoral, or
notoriously disgraceful conduct, or other conduct prejudicial to
the Government." [
Footnote 3/2]
Aside from specifying the standards for discharges, Congress has
also established the procedural framework in which the discharge
determinations are to be made. The employee is to receive 30 days'
advance written notice of the action sought and of any charges
preferred against him, a copy of the charges, and a
Page 416 U. S. 173
reasonable time for filing a written answer to the charges.
Before being terminated, he may also make a personal appearance
before an agency official, and implementing Civil Service
Commission regulations provide that
"[t]he right to answer personally includes the right to answer
orally in person by being given a reasonable opportunity to make
any representations which the employee believes might sway the
final decision on his case, but does not include the right to a
trial or a formal hearing with examination of witnesses."
The regulations further provide that the
"representative or representatives designated to hear the answer
shall be persons who have authority either to make a final decision
on the proposed adverse action or to recommend what final decision
should be made."
The employee is entitled to notice of the agency's decision in
writing, and the notice must inform the employee "[w]hich of the
reasons in the notice of proposed adverse action have been found
sustained and which have been found not sustained." [
Footnote 3/3] The employee
Page 416 U. S. 174
may appeal from an adverse decision and is entitled to an
evidentiary trial-type hearing at this stage. [
Footnote 3/4] This later hearing affords the
employee certain rights not available within OEO at the
pre-termination stage, particularly
Page 416 U. S. 175
the taking of testimony under oath and the cross-examination of
witnesses.
Appellee Kennedy was a nonprobationary federal employee in the
competitive civil service, and held the position of field
representative in the Chicago Regional Office of OEO. As such, he
was entitled to the protection of the statutes and regulations
outlined above. On February 18, 1972, Kennedy received a
"Notification of Proposed Adverse Action" from the Regional
Director of OEO, Wendell Verduin. The notice charged, among other
things, that Kennedy had made slanderous statements about Verduin
and another coworker charging them with bribing or attempting to
bribe a potential OEO grantee, and had thereby caused disharmony in
his office by preventing its smooth functioning. Verduin then ruled
on March 20, 1972, after Kennedy had filed a written answer
objecting to the lack of certain procedures furnished at this
pre-termination hearing, but had declined to appear personally,
that Kennedy be removed from his job with OEO effective March 27,
1972. [
Footnote 3/5]
Page 416 U. S. 176
Kennedy then appealed directly to the Civil Service Commission,
and also instituted the present action. The first count of his
complaint alleged that the discharge procedure of the Lloyd-La
Follette Act, and the attendant Civil Service Commission
regulations, deprived him of due process by failing to provide for
a full hearing prior to termination. The second count alleged that
he was discharged because of certain conversations, in violation of
his rights under the First Amendment. The single judge who reviewed
the complaint convened a three-judge court to hear the first count,
and dismissed the second, without prejudice to refiling after the
Civil Service Commission ruled on his appeal. It was the court's
view that it should not act until the agency had the opportunity to
review the merits of appellee's First Amendment claim.
After the convening of the three-judge court, appellee amended
his complaint, then limited to the due process claim, to include a
challenge to the Lloyd-La Follette Act on the grounds that it was
vague and overbroad, and violated the First Amendment.
The three-judge District Court, convened pursuant to 28 U.S.C.
§§ 2282 and 2284, granted summary judgment for appellee.
349 F.
Supp. 863. It held that the discharge procedures violated due
process because
"[t]here was no provision . . . for the decision on removal or
suspension to be made by an impartial agency
Page 416 U. S. 177
official, or for Kennedy (by his own means) to present
witnesses; or for his right to confront adverse witnesses."
Id. at 865. The court also held that § 7501 was
unconstitutional on vagueness and overbreadth grounds. The
Government was ordered to reinstate Kennedy to his former position
with backpay and to conduct any future removal proceedings with a
hearing consistent with its opinion. Appellants were also enjoined
from further enforcement of the Lloyd-La Follette Act, and
implementing regulations, as "construed to regulate the speech of
competitive service employees."
Id. at 866.
I
In my view, three issues must be addressed in this case. First,
does the Due Process Clause require that there be a full trial-type
hearing at
some time when a Federal Government employee in
the competitive service is terminated? Secondly, if such be the
case, must this hearing be held prior to the discharge of the
employee, and, if so, was the process afforded in this case
adequate? Third, and as an entirely separate matter, are the
Lloyd-La Follette Act and its attendant regulations void for
vagueness or overbreadth? I join the Court as to the third
issue.
II
I differ basically with the plurality's view that,
"where the grant of a substantive right is inextricably
intertwined with the limitations on the procedures which are to be
employed in determining that right, a litigant in the position of
appellee must take the bitter with the sweet,"
and that
"the property interest which appellee had in his employment was
itself conditioned by the procedural limitations which had
accompanied the grant of that interest."
Ante at
416 U. S.
153-154,
416 U. S. 155.
The rationale of this position quickly leads to the conclusion
that, even though
Page 416 U. S. 178
the statute requires cause for discharge, the requisites of due
process could equally have been satisfied had the law dispensed
with any hearing at all, whether pre-termination or
post-termination.
The past cases of this Court uniformly indicate that some kind
of hearing is required at some time before a person is finally
deprived of his property interests. [
Footnote 3/6] The principles of due process
"come to us from the law of England . . . , and their
requirement was there designed to secure the subject against the
arbitrary action of the crown and place him under the protection of
the law."
Dent v. West Virginia, 129 U.
S. 114,
129 U. S. 123
(1889). The
"right to be heard before being condemned to suffer grievous
loss of any kind, even though it may not involve the stigma and
hardships of a criminal conviction, is a principle basic to our
society."
Anti-Fascist Committee v. McGrath, 341 U.
S. 123,
341 U. S. 168
(1951) (Frankfurter, J., concurring).
This basic principle has unwaveringly been applied when private
property has been taken by the State. A fundamental requirement of
due process is "the opportunity to be heard."
Grannis v.
Ordean, 234 U. S. 385,
234 U. S. 394
(1914). "It is an opportunity which must be granted at a meaningful
time and in a meaningful manner."
Armstrong v. Manzo,
380 U. S. 545,
380 U. S. 552
(1965). Where the Court has rejected the need for a hearing prior
to the initial "taking," a principal rationale has been that a
hearing would be provided before the taking became final.
See
North American Cold Storage Co. v. Chicago, 211 U.
S. 306 (1908) (seizure of food unfit for consumption);
Central Trust Co. v. Garvan, 254 U.
S. 554 (1921) (seizure of property under Trading with
the
Page 416 U. S. 179
Enemy Act);
Corn Exchange Bank v. Coler, 280 U.
S. 218 (1930) (seizure of assets of an absconding
husband);
Phillips v. Commissioner, 283 U.
S. 589 (1931) (collection of a tax);
Bowles v.
Willingham, 321 U. S. 503
(1944) (setting of price regulations);
Fahey v. Mallonee,
332 U. S. 245
(1947) (appointment of conservator of assets of savings and loan
association);
Ewing v. Mytinger & Casselberry,
339 U. S. 594
(1950) (seizure of misbranded articles in commerce). While these
cases indicate that the particular interests involved might not
have demanded a hearing immediately, they also reaffirm the
principle that property may not be taken without a hearing at some
time.
This principle has also been applied in situations where the
State has licensed certain activities. Where the grant or denial of
a license has been involved, and the "right" to engage in business
has been legitimately limited by the interest of the State in
protecting its citizens from inexpert or unfit performance, the
decision of the State to grant or deny a license has been subject
to a hearing requirement.
See, e.g., Dent v. West Virginia,
supra, (licensing of physicians);
Goldsmith v. United
States Board of Tax Appeals, 270 U. S. 117
(1926) (licensing of accountant);
Willner v. Committee on
Character and Fitness, 373 U. S. 96 (1963)
(admission to the bar). The Court has put particular stress on the
fact that the absence of a hearing would allow the State to be
arbitrary in its grant or denial, and to make judgments on grounds
other than the fitness of a particular person to pursue his chosen
profession. In the context of admission to the bar, the Court has
stated:
"Obviously an applicant could not be excluded merely because he
was a Republican or a Negro or a member of a particular church.
Even in applying permissible standards, officers of a State cannot
exclude an applicant when there is no
Page 416 U. S. 180
basis for their finding that he fails to meet these standards,
or when their action is invidiously discriminatory."
Schware v. Board of Bar Examiners, 353 U.
S. 232,
353 U. S. 239
(1957). The hearing requirement has equally been applied when the
license was to be removed,
In re Ruffalo, 390 U.
S. 544 (1968), or a licensee has been subject to state
regulation,
Ohio Bell Telephone Co. v. Public Utilities Comm'n
of Ohio, 301 U. S. 292
(1937).
Similar principles prevail when the State affords its process
and mechanism of dispute settlement, its law enforcement officers,
and its courts, in aiding one person to take property from another.
Where there is a "taking" before a final determination of rights,
as in some cases when the State seizes property, to protect one of
the parties
pendente lite, the Court has acted on the
assumption that, at some time a full hearing will be available, as
when there is an attachment of property preliminary to resolution
of the merits of a dispute,
Ownbey v. Morgan, 256 U. S.
94 (1921);
Coffin Brothers v. Bennett,
277 U. S. 29
(1928);
McKay v. McInnes, 279 U.S. 820 (1929). The
opportunity to defend one's property before it is finally taken is
so basic that it hardly bears repeating. Adequate notice of the
court proceeding must be furnished,
Mullane v. Central Hanover
Bank & Trust Co., 339 U. S. 306
(1950), and there must be jurisdiction over the person,
Pennoyer v. Neff, 95 U. S. 714
(1878).
Since there is a need for some kind of hearing before a person
is finally deprived of his property, the argument in the instant
case, and that adopted in the plurality opinion, is that there is
something different about a final taking from an individual of
property rights which have their origin in the public, rather than
the private, sector of the economy, and, as applied here, that
there is no need for any hearing at any time when the
Government
Page 416 U. S. 181
discharges a person from his job, even though good cause for the
discharge is required.
In cases involving employment by the Government, the earliest
cases of this Court have distinguished between two situations,
where the entitlement to the job is conditioned "at the pleasure"
of the employer and where the job is to be held subject to certain
requirements being met by the employee, as when discharge must be
for "cause." The Court has stated:
"The inquiry is therefore whether there were any causes of
removal prescribed by law. . . . If there were, then the rule would
apply that, where causes of removal are specified by constitution
or statute, as also where the term of office is for a fixed period,
notice and hearing are essential. If there were not, the appointing
power could remove at pleasure or for such cause as it deemed
sufficient."
Reagan v. United States, 182 U.
S. 419,
182 U. S. 425
(1901);
Shurtleff v. United States, 189 U.
S. 311,
189 U. S. 314
(1903). The Court has thus made clear that Congress may limit the
total discretion of the Executive in firing an employee, by
providing that terminations be for cause, and only for cause, and,
if it does so, notice and a hearing are "essential."
Where Executive discretion is not limited, there is no need for
a hearing. In the latter event, where the statute has provided that
employment was conditioned on "
maintain[ing] the respect due to
courts of justice and judicial officers,'" Ex parte
Secombe, 19 How. 9, 60 U. S. 14 (1857)
(attorney and counselor of court), or was subject to no conditions
at all, Ex parte
Hennen, 13 Pet. 225 (1839) (clerk of the court), no
hearing is required. See also Crenshaw v. United States,
134 U. S. 99 (1890)
(Navy officer could be removed at will); Parsons v. United
States, 167 U. S. 324
(1897) (district attorney could be terminated by the President at
his pleasure); Keim v. United States, 177 U.
S. 290 (1900) (post office
Page 416 U. S. 182
clerks removable at pleasure). To like effect is
Cafeteria
Workers v. McElroy, 367 U. S. 886
(1961), where the Court held that no hearing need be provided to a
cook employed by a private concessionaire of the Navy before the
Government revoked her security clearance. The revocation of
security clearances was within the "unfettered control" of the Navy
in order "to manage the internal operation of an important federal
military establishment."
Id. at
367 U. S. 896.
The Court there assumed that
"Rachel Brawner could not constitutionally have been excluded
from the Gun Factory if the announced grounds for her exclusion had
been patently arbitrary or discriminatory. . . ."
Id. at
367 U. S.
898.
Where the Congress has confined Executive discretion, notice and
hearing have been required. In
Anti-Fascist Committee v.
McGrath, 341 U. S. 123
(1951), an organization was put on the Attorney General's list, as
disloyal to the United States, without a hearing before the
Attorney General. The Executive Order, as defined by implementing
regulations, required the Executive to make an "appropriate
determination" of disloyalty. It was apparent that members of
organizations employed by the Government who belonged to an
organization on the Attorney General's list would be in danger of
losing their jobs. The Court held, assuming the facts as alleged by
the complaints were true, that it would be arbitrary, and not
consistent with an "appropriate determination," to deny a hearing
on the matter to the affected organizations. As Mr. Justice
Frankfurter observed in his concurring opinion,
"[t]he heart of the matter is that democracy implies respect for
the elementary rights of men, however suspect or unworthy; a
democratic government must therefore practice fairness; and
fairness can rarely be obtained by secret, one-sided determination
of facts decisive of rights."
Id. at
341 U. S.
170.
Page 416 U. S. 183
To some extent,
McGrath and like cases,
see Greene
v. McElroy, 360 U. S. 474
(1959), depended on statutory construction -- the intent of
Congress to require that procedural fairness be observed in making
decisions on security clearances or status, which affected
employment -- but it is obvious that the constitutional
requirements of fairness were a guiding hand to the Court's
statutory interpretation.
"Where administrative action has raised serious constitutional
problems, the Court has assumed that Congress or the President
intended to afford those affected by the action the traditional
safeguards of due process,"
and it has been
"the Court's concern that traditional forms of fair procedure
not be restricted by implication or without the most explicit
action by the Nation's lawmakers. . . ."
Id. at
360 U. S.
507-508.
The concern of the Court that fundamental fairness be observed
when the State deals with its employees has not been limited to
action which is discriminatory and infringes on constitutionally
protected rights, as in
Wieman v. Updegraff, 344 U.
S. 183 (1952);
Slochower v. Board of Education,
350 U. S. 551
(1956);
Speiser v. Randall, 357 U.
S. 513 (1958);
Sherbert v. Verner, 374 U.
S. 398 (1963).
See also Connell v.
Higginbotham, 403 U. S. 207
(1971). It has been observed that
"constitutional protection does extend to the public servant
whose exclusion pursuant to a statute is
patently
arbitrary or discriminatory."
Wieman v. Updegraff, supra, at
344 U. S. 192;
Slochower v. Board of Education, supra, at
350 U. S. 556.
(Emphasis added.) In
Slochower, supra, New York law
provided that a tenured employee taking the Fifth Amendment before
a legislative committee inquiring into his official conduct could
be fired. Quite apart from the Fifth Amendment "penalty" assessed
by the State, the Court was concerned with the arbitrariness of
drawing a conclusion, without a hearing, that any employee who
Page 416 U. S. 184
took the Fifth Amendment was guilty or unfit for employment. The
Court stated:
"This is not to say that Slochower has a constitutional right to
be an associate professor of German at Brooklyn College. The State
has broad powers in the selection and discharge of its employees,
and it may be that proper inquiry would show Slochower's continued
employment to be inconsistent with a real interest of the State.
But there has been no such inquiry here."
Id. at
350 U. S.
559.
The Court's decisions in
Board of Regents v. Roth,
408 U. S. 564
(1972), and
Perry v. Sindermann, 408 U.
S. 593 (1972), reiterate the notion that the Executive
Branch cannot be arbitrary in depriving a person of his job when
the Legislative Branch has provided that a person cannot be fired
except for cause, and, if anything, extend the principles beyond
the facts of this case.
In
Sindermann, a teacher who had held his position for
a number of years but was not tenured under contract alleged that
he had
de facto tenure under contract law due to "the
existence of rules or understandings" with the college which
employed him,
id. at
408 U. S. 602.
The Court held that, if the professor could prove the existence of
a property interest, it would "obligate college officials to grant
a hearing at his request, where he could be informed of the grounds
for his nonretention and challenge their sufficiency."
Id.
at
408 U. S. 603.
In
Roth, an assistant professor was hired for a fixed term
of one academic year, and had no tenure. The Court held that the
teacher had no property interest in the job, since the terms of
employment allowed that his contract not be renewed. The critical
consideration was that the terms "did not provide for contract
renewal absent
sufficient cause.'" 408 U.S. at 408 U. S. 578.
The rights to continued employment were determined by state law.
The Court took great pains,
Page 416 U. S.
185
however, to point out that a tenured appointment, providing
for entitlement to a job, absent cause, would be a far different
case.
These cases only serve to emphasize that where there is a
legitimate entitlement to a job, as when a person is given
employment subject to his meeting certain specific conditions, due
process requires, in order to insure against arbitrariness by the
State in the administration of its law, that a person be given
notice and a hearing before he is finally discharged. As the Court
stated in
Dismuke v. United States, 297 U.
S. 167,
297 U. S. 172
(1936):
"If [the administrative officer] is authorized to determine
questions of fact, his decision must be accepted unless he exceeds
his authority . . . by failing to follow a procedure which
satisfies elementary standards of fairness and reasonableness
essential to the due conduct of the proceeding which Congress has
authorized."
To be sure, to determine the existence of the property interest,
as for example, whether a teacher is tenured or not, one looks to
the controlling law, in this case, federal statutory law, the
Lloyd-La Follette Act, which provides that a person can only be
fired for cause. The fact that the origins of the property right
are with the State makes no difference for the nature of the
procedures required. While the State may define what is and what is
not property, once having defined those rights, the Constitution
defines due process, and, as I understand it, six members of the
Court are in agreement on this fundamental proposition.
I conclude, therefore, that, as a matter of due process, a
hearing must be held at some time before a competitive civil
service employee may be finally terminated for misconduct. Here,
the Constitution and the Lloyd-La Follette Act converge, because a
full trial-type hearing
Page 416 U. S. 186
is provided by statute before termination from the service
becomes final, by way of appeal either through OEO, the Civil
Service Commission, or both. [
Footnote
3/7]
A different case might be put, of course, if the termination
were for reasons of pure inefficiency, assuming such a general
reason could be given, in which case, it would be at least arguable
that a hearing would serve no useful purpose, and that judgments of
this kind are best left to the discretion of administrative
officials. This is not such a case, however, since Kennedy was
terminated on specific charges of misconduct.
III
The second question which must be addressed is whether a hearing
of some sort must be held before any "taking" of the employee's
property interest in his job occurs, even if a full hearing is
available before that taking becomes final. I must resolve this
question because, in my view, a full hearing must be afforded at
some juncture, and the claim is that it must occur prior to
termination. If the right to any hearing itself is a pure matter of
property definition, as the plurality opinion suggests, then that
question need not be faced, for any kind of hearing, or no hearing
at all, would suffice. As I have suggested, the State may not
dispense with the minimum procedures defined by due process, but
different considerations come into play when deciding whether a
pre-termination hearing is required and, if it is, what kind of
hearing must be had.
Page 416 U. S. 187
In passing upon claims to a hearing before preliminary but
nonfinal deprivations, the usual rule of this Court has been that a
full hearing at some time suffices.
"We have repeatedly held that no hearing at the preliminary
stage is required by due process so long as the requisite hearing
is held before the final administrative order becomes
effective."
"It is sufficient, where only property rights are concerned,
that there is at some stage an opportunity for a hearing and a
judicial determination."
Ewing v. Mytinger & Casselberry, 339 U.S. at
339 U. S. 598,
599.
See also Phillips v. Commissioner, 283 U.
S. 589,
283 U. S.
596-597 (1931);
Scottish Union National Insurance
Co. v. Bowland, 196 U. S. 611,
196 U.S. 631-632 (1905);
Springer v. United States, 102 U.
S. 586,
102 U. S.
593-594 (1881). This has seemingly been the rule whether
the State was taking property from the person, as in the
above-cited cases, or whether one person was taking it from another
through the process of state courts.
See Ownbey v. Morgan,
256 U. S. 94
(1921);
Coffin Brothers v. Bennett, 277 U. S.
29 (1928);
McKay v. McInnes, 279 U.S. 820
(1929).
In recent years, however, in a limited number of cases, the
Court has held that a hearing must be furnished at the first stage
of taking, even where a later hearing was provided. This has been
true in the revocation of a state-granted license,
Bell v.
Burson, 402 U. S. 535
(1971), and in suits between private parties, where summary
replevin procedures,
Fuentes v. Shevin, 407 U. S.
67 (1972), or garnishment procedures,
Sniadach v.
Family Finance Corp., 395 U. S. 337
(1969), were attacked, and when the State has sought to terminate
welfare benefits,
Goldberg v. Kelly, 397 U.
S. 254 (1970). [
Footnote
3/8]
Page 416 U. S. 188
These conflicting lines of cases demonstrate, as the Court
stated in
Cafeteria & Restaurant Workers v. McElroy,
367 U.S. at
367 U. S. 895,
that
"consideration of what procedures due process may require under
any given set of circumstances must begin with a determination of
the precise nature of the government function involved as well as
of the private interest that has been affected by governmental
action."
See also Hannah v. Larche, 363 U.
S. 420,
363 U. S. 440,
442 (1960);
Goldberg v. Kelly, supra, at
397 U. S. 263.
In assessing whether a prior hearing is required, the Court has
looked to how the legitimate interests asserted by the party
asserting the need for a hearing, and the party opposing it, would
be furthered or hindered.
In many cases where the claim to a pre-termination hearing has
been rejected, it appears that the legitimate interest of the party
opposing the hearing might be defeated outright if such hearing
were to be held. [
Footnote 3/9] For
example, when the Government or a private party lays claim to
property, there is often the danger that the person in possession
of the property may alienate or waste it, and the Government or
private party may be without recourse. Thus, the Court has held
that there is no need for a prior hearing where the Government has
taken preliminary custody of alleged enemy property before actual
title to the property is determined,
Central Trust Co. v.
Garvan, 254 U. S. 554
(1921);
Stoehr v. Wallace, 255 U.
S. 239 (1921), or where a private creditor has sought to
attach property of a debtor.
See Ownbey v. Morgan, supra;
Coffin Brothers v. Bennett, supra; McKay v. McInnes, supra. Of
course, such summary action must be authorized in such a manner as
to minimize the possibilities of a mistaken deprivation, by a
Page 416 U. S. 189
public official in the case of administrative action, or a judge
where the processes of the court are used.
Fuentes v. Shevin,
supra.
The danger that the purpose of the action may be defeated, or
made exceedingly difficult, by requiring a prior hearing, is
illustrated by
North American Cold Storage Co. v. Chicago,
211 U. S. 306
(1908), where the Court sustained the constitutionality of an
Illinois statute permitting health inspectors to enter cold-storage
houses and "forthwith seize, condemn and destroy" unfit food. The
defendants in the action claimed that, while it may be necessary to
seize the food pending a hearing, surely destruction of that food
could not be justified. Nonetheless, the Court observed:
"If a hearing were to be always necessary, even under the
circumstances of this case, the question at once arises as to what
is to be done with the food in the meantime. Is it to remain with
the cold storage company, and if so, under what security that it
will not be removed? To be sure that it will not be removed during
the time necessary for the hearing, which might frequently be
indefinitely prolonged, some guard would probably have to be placed
over the subject matter of the investigation, which would involve
expense, and might not even then prove effectual."
Id. at
211 U. S. 320.
Similar inabilities of the party claiming a right to a prior
hearing to make the moving party in the suit whole have appeared
where incompetence and malfeasance in the administration of a bank
could precipitate a financial collapse in the community, which
would go uncompensated,
see Fahey v. Mallonee, 332 U.S. at
332 U. S. 250,
or where, in the absence of a jeopardy assessment by the Tax
Commissioner, a taxpayer might waste or conceal his assets,
see
Phillips v. Commissioner, supra. In all
Page 416 U. S. 190
such cases it is also significant that the party advancing the
claim to a summary procedure stands ready to make whole the party
who has been deprived of his property, if the initial taking proves
to be wrongful, either by the credit of the public fisc or by
posting a bond.
Of course, this principle cannot be applied with success to
explain the Court's decisions in cases holding that a
pre-termination hearing is required; it is not true that the party
entitled to the hearing stands ready to compensate the adversary
for what may be the wrongful possession of the property in question
during the pendency of the litigation. This is vividly illustrated
in
Goldberg v. Kelly, where the Court observed that
"the benefits paid to ineligible recipients pending decision at
the hearing probably cannot be recouped, since these recipients are
likely to be judgment-proof."
397 U.S. at
397 U. S. 266.
However, other considerations have proved decisive, such as: the
risk that the initial deprivation may be wrongful; the impact on
the claimant to a hearing of not having the property while he waits
for a full hearing; the interest of the party opposing the prior
hearing and asserting the need for immediate possession in not
alerting the current possessor to the lawsuit; and the risk of
leaving the property in possession of the current possessor between
the time notice is supplied and the time of the preliminary
hearing.
In
Goldberg and
Sniadach, the Court observed
that there was a substantial chance that the claimant to the
property, be it the State or garnishor, would lose in the ultimate
resolution of the controversy. In
Goldberg, the Court took
note of the "welfare bureaucracy's difficulties in reaching correct
decisions on eligibility." 397 U.S. at
397 U. S. 264
n. 12. Since the time of the decision in
Goldberg, at
least one study has shown that decisions to terminate benefits have
been reversed with a fair degree of frequency. [
Footnote 3/10]
Page 416 U. S. 191
Concern was also expressed with the use of garnishment in a vast
number of cases where the debt was fraudulent.
Sniadach,
395 U.S. at
395 U. S. 341.
In
Fuentes, although no such empirical evidence was
available, the risk of wrongful deprivations was unnecessarily
increased by allowing a clerk, rather than a judge, to pass on the
creditor's claim for summary replevin. In
Bell, the Court
held unconstitutional a state statute requiring summary suspension
of a driver's license of any uninsured motorist who was unable
after an accident to post security for the amount of the damages
claimed against him. The only hearing held by the State on the
issue of suspension excluded any consideration of fault, the
standard on which the validity would ultimately turn. Without some
kind of probable cause determination of fault, it was obvious that
many suspensions would prove to be unwarranted.
As for the impact on the current property possessor of not
having an early pre-termination hearing, the Court has held that,
without possession of the property, a person may be unable to exist
at even a minimum standard of decency. In
Goldberg, where
the person would have lost the last source of support available,
aside from charity, the Court observed that
"termination of aid pending resolution of a controversy over
eligibility may deprive an eligible recipient of the very means by
which to live while he waits. Since he lacks independent resources,
his situation becomes immediately desperate."
397 U.S. at
397 U. S. 264.
In fact, the magnitude of deprivation may be such as to prevent the
welfare recipient from pursuing his right to a later full hearing.
Ibid. In
Sniadach, the seizure of an individual's
wages could, "as a practical
Page 416 U. S. 192
matter, drive a wage-earning family to the wall." 395 U.S. at
395 U. S.
341-342 (footnote omitted). In
Bell, the
petitioner was a clergyman whose ministry required him to travel by
car to cover three rural Georgia communities, and he was "severely
handicapped in the performance of his ministerial duties by a
suspension of his licenses." 402 U.S. at
402 U. S. 537.
The impact of deprivation increases, of course, the longer the time
period between the initial deprivation and the opportunity to have
a full hearing. In
Goldberg, the Court noted that,
although pertinent New York regulations provided that a "fair
hearing" be held within 10 working days of the request, with
decision within 12 working days thereafter, "[i]t was conceded in
oral argument that these time limits are not, in fact, observed."
397 U.S. at
397 U. S. 260
n. 5. In
Sniadach and
Fuentes, there was no
indication of the speed with which a court ruling on garnishment
and possession would be rendered, and of course the ultimate issues
on the merits in such cases must wait for a still later
determination. In
Bell, the issue of liability might not
be determined until full trial proceedings in court.
The last factor to be weighed in the balance is the danger to
the party claiming possession occasioned by alerting the current
possessor to the lawsuit, and then leaving the property in his
hands pending the holding of the preliminary hearing. In
Goldberg and
Sniadach, the property right seized
was a flow of income, in one case from the government and in the
other from the private employer, pending the preliminary hearing.
The government ran no special risk by supplying notice in advance
of the cut-off, since the government was in possession of the flow
of income until it was turned over piecemeal to the welfare
recipient. Further, though the government could assert in the
welfare case that it would incur an uncompensated loss, that risk
would only be
Page 416 U. S. 193
incurred from the time the last check is delivered until the
pre-termination hearing is held and the administrative agency
certainly has the power to offer a speedy hearing before that time
is reached.
See Goldberg v. Kelly, supra, at
397 U. S. 266.
In
Sniadach, while it was true that the inability to
garnish wages could leave the creditor uncompensated, if the debtor
proved judgment proof, this was a risk the creditor assumed at the
outset by being unsecured. Further, notice to the debtor of the
pendency of the lawsuit is not likely to increase the risk that the
debtor will prove to be judgment proof, since the debtor is not
likely to leave his job due to the pendency of the suit. Likewise,
the risk to the creditor of the debtor's drawing on his wages
between the time of notice and the availability of a court hearing
on the claim in no way interferes with the creditor's claim to the
future flow of earnings after the hearing has been held. The
garnishor, therefore, asserts not only the right to take the
debtor's wages, but to take them before the controversy has been
resolved. In
Bell, the risk to the State of supplying
notice to the licensee and of leaving the person in possession of
the license until the hearing was not at issue, since the state
statute provided for notice and a pre-suspension hearing. There
were few costs attached to expanding the scope of that hearing to
include a probable cause determination of fault.
With the above principles in hand, is the tenured civil service
employee entitled to a pre-termination hearing, such as that
provided by the Lloyd-La Follette Act?
There would be a problem of uncompensated loss to the Government
if the employee were to draw wages without working for the period
between notice of a discharge and a preliminary hearing. Yet, if
the charge against the employee did not indicate that the employee
should be
Page 416 U. S. 194
excluded from the workplace pending this hearing, some work
could be exacted by the Government in exchange for its payment of
salary. One must also consider another type of cost to the
Government if pre-separation hearings were provided -- the
necessity of keeping a person on the scene who might injure the
public interest through poor service or might create an uproar at
the workplace. However, suspension with pay would obviate this
problem.
On the employee's side of the ledger, there is the danger of
mistaken termination. Discharge decisions, made
ex parte,
may be reversed after full hearing. One study reveals that, in
fiscal year 1970, in agencies where full pre-termination hearings
were routine, employees contesting removal were successful almost
20% of the time. Merrill, Procedures for Adverse Actions Against
Federal Employees, 59 Va.L.Rev.196, 204 n. 35 (1973).
The impact on the employee of being without a job pending a full
hearing is likely to be considerable, because
"[m]ore than 75 percent of actions contested within employing
agencies require longer to decide than the 60 days prescribed by
[Civil Service] Commission regulations. Over 50 percent take more
than three months, and five percent are in process for longer than
a year."
Id. at 206. Of course, the discharged civil servant,
deprived of his source of income, can seek employment in the
private sector, and so cut or minimize his losses, opportunities
largely unavailable to the welfare recipient in
Goldberg
or the debtor in
Sniadach. Nonetheless, the employee may
not be able to get a satisfactory position in the private sector,
particularly a tenured one, and his marketability may be under a
cloud due to the circumstances of his dismissal.
See Lefkowitz
v. Turley, 414 U. S. 70,
414 U. S. 83-84
(1973).
Cf. Board of Regents v. Roth, 408 U.S. at
408 U. S. 574
n. 13. It should be stressed that,
Page 416 U. S. 195
if such employment is unavailable, the Government may truly be
pursuing a partially counterproductive policy by forcing the
employee onto the welfare rolls.
Finally, by providing a pre-termination hearing, the Government
runs no risk through providing notice, since the employee cannot
run away with his job, and can surely minimize its risk of
uncompensated loss by eliminating the provision for personal
appearances and setting early dates for filing written objections.
Altogether different considerations as to notice might be
applicable if the employee would be likely to do damage to the
Government if provided with such notice.
See 5 CFR §
752.202(c)(2) (1972), providing that an agency may dispense with
the 30-day notice requirement "[w]hen there is reasonable cause to
believe an employee is guilty of a crime for which a sentence of
imprisonment can be imposed."
Perhaps partly on the basis of some of these constitutional
considerations, Congress has provided for pre-termination hearings.
Certainly the debate on the Lloyd-La Follette Act indicates that
constitutional considerations were present in the minds of
Congressmen speaking in favor of the legislation. [
Footnote 3/11] In any event, I conclude that the
statute and regulations, to the extent they require 30 days'
advance notice and a right to make
Page 416 U. S. 196
a written presentation, satisfy minimum constitutional
requirements.
IV
Appellee in this case not only asserts that he is entitled to a
hearing at some time before his property interest is finally
terminated, and to a pre-termination hearing of some kind before
his wages are provisionally cut off, which are currently provided
to him, but also argues that he must be furnished certain
procedures at this preliminary hearing not provided by Congress: an
impartial hearing examiner, an opportunity to present witnesses,
and the right to engage in cross-examination. In other words, his
claim is not only to a pre-termination hearing, but one in which
full trial-type procedures are available.
A
The facts in this case show that the Regional Director, Verduin,
who charged appellee Kennedy with making slanderous statements
about him as to an alleged bribe offer, also ruled in the
preliminary hearing that Kennedy should be terminated.
The "Notification of Proposed Adverse Action," signed by
Verduin, charged that appellee had "made statements knowingly
against officials of this agency which could harm or destroy their
authority, official standing or reputation" and that appellee had
engaged
"in a course of conduct intended to produce public notoriety and
conclusions on the part of the public, without any proof whatsoever
and in reckless disregard of the actual facts known to you
[appellee], or reasonably discoverable by you [appellee], that
officials of this agency had committed or attempted to commit acts
of misfeasance, nonfeasance and malfeasance."
Facts were marshaled to support the charges that appellee had
spoken at a union
Page 416 U. S. 197
meeting
"to the effect that [Verduin and his assistant] had attempted to
bribe Mr. James White Eagle Stewart by offering him a $100,000
grant of OEO funds if he would sign a statement against you
[appellee] and another employee,"
and that appellee had spoken of the bribe to a newspaper
reporter and to a radio station.
After appellee had received this notice, he made no response to
the merits of the charges, but instead wrote to Verduin requesting
that he was entitled to certain procedural rights at the hearing,
one of which was to have "a genuinely impartial hearing officer,"
thus furnishing Verduin with the opportunity to recuse himself and
provide an alternative hearing examiner. This was not done.
In considering appellee's claim to have an impartial hearing
examiner, we might start with a first principle: "[N]o man shall be
a judge in his own cause."
Bonham's Case, 8 Co. 114a,
118a, 77 Eng.Rep. 646, 652 (1610). Verduin's reputation was
certainly at stake in the charges brought against Kennedy. Indeed,
the heart of the charge was that Kennedy had spoken of Verduin in
reckless disregard of the truth. That Verduin almost seemed to be
stating a libel complaint against Kennedy under
New York Times
Co. v. Sullivan, 376 U. S. 254
(1964), dramatizes the personal conflict which precipitated the
proposed termination.
Our decisions have stressed, in situations analogous to the one
faced here, that the right to an impartial decisionmaker is
required by due process. The Court has held that those with a
substantial pecuniary interest in legal proceedings should not
adjudicate these disputes.
Tumey v. Ohio, 273 U.
S. 510 (1927);
Ward v. Village of Monroeville,
409 U. S. 57
(1972). The Court has observed that disqualification because of
interest has been extended with equal force to administrative
adjudications.
Gibson v. Berryhill, 411 U.
S. 564,
411 U. S. 579
(1973).
Page 416 U. S. 198
In the context of contempt before a judge, where a judge trying
a defendant is the object of "efforts to denounce, insult, and
slander the court," and "marked personal feelings were present on
both sides," the Court has held that criminal contempt proceedings
should be held before a judge other than the one reviled by the
contemnor.
Mayberry v. Pennsylvania, 400 U.
S. 455,
400 U. S. 462,
464 (1971).
See In re Oliver, 333 U.
S. 257 (1948);
cf. In re Murchison,
349 U. S. 133
(1955).
We have also stressed the need for impartiality in
administrative proceedings, stating in
Goldberg v. Kelly,
supra, that an "impartial decisionmaker is essential," 397
U.S. at
397 U. S. 271.
(Citations omitted.) To the same effect was
Morrissey v.
Brewer, 408 U. S. 471,
408 U. S.
485-486 (1972), involving revocation of parole. In both
Goldberg and
Morrissey, this requirement was held
to apply to pre-termination hearings. [
Footnote 3/12]
It may be true that any hearing without an impartial hearing
officer will reflect the bias of the adjudicator. The interest of
the Government in not so providing would appear slim. Given the
pre-termination hearing, it would seem in the Government's interest
to avoid lengthy appeals occasioned by biased initial judgments,
and it would be reasonable to expect more correct decisions at the
initial stage at little cost if the hearing officer is
impartial.
Page 416 U. S. 199
My view is a narrower one, however. Fairness and accuracy are
not always threatened simply because the hearing examiner is the
supervisor of an employee, or, as in this case, the Regional
Director over many employees, including appellee. But here the
hearing official was the object of slander that was the basis for
the employee's proposed discharge.
See Mayberry v.
Pennsylvania, supra. In ruling that the employee was to be
terminated, the hearing examiner's own reputation, as well as the
efficiency of the service, was at stake; and although Mr. Verduin
may have succeeded, in fact, in disassociating his own personal
feelings from his decision as to the interests of OEO, the risk and
the appearance that this was not the case were too great to
tolerate. In such situations, the official normally charged with
the discharge decision need only recuse and transfer the file to a
person qualified to make the initial decision. We need not hold
that the Lloyd-La Follette Act is unconstitutional for its lack of
provision for an impartial hearing examiner. Congress is silent on
the matter. We would rather assume, because of the constitutional
problems in not so providing, that, if faced with the question (at
least on the facts of this case), Congress would have so provided.
Volkswagenwerk v. FMC, 390 U. S. 261,
390 U. S. 272
(1968).
"Where administrative action has raised serious constitutional
problems, the Court has assumed that Congress or the President
intended to afford those affected by the action the traditional
safeguards of due process."
Greene v. McElroy, 360 U.S. at
360 U. S. 507
(citations omitted). [
Footnote
3/13]
Page 416 U. S. 200
B
Appellee also claims a right to a full trial-type hearing at the
pre-termination stage, particularly asserting that he is denied due
process, if not given the opportunity to present and cross-examine
witnesses.
While fully realizing the value of a full trial-type hearing as
a method for ultimate resolution of the facts,
see id. at
360 U. S.
496-497, the pre-termination hearing is not held for the
purpose of making such an ultimate determination. This is provided
for through the appeal procedure, where the employee is afforded
the procedural rights he now seeks at an earlier stage of the
proceedings. The function of the pre-termination hearing is, and no
more is required by due process, to make a probable cause
determination as to whether the charges brought against the
employee are or are not true. Where the Court has held that
pre-termination hearings are required, in past decisions, it has
spoken sparingly of the procedures to be required.
Sniadach was silent on the matter, and
Fuentes
merely required something more than an
ex parte proceeding
before a court clerk. In
Bell, the Court held that the
hearing must involve a probable cause determination as to the fault
of the licensee, and "need not take the form of a full adjudication
of the question of liability," realizing that "[a] procedural rule
that may satisfy due process in one context may not necessarily
satisfy due process in every case." 402 U.S. at
402 U. S. 540.
Thus,
"procedural due process [was to] be satisfied by an inquiry
limited to the determination whether there is a reasonable
possibility of judgments in the amounts claimed being rendered
against the licensee."
Ibid. We think the clear implication of
Bell
to be that "full adjudication," including presentation of witnesses
and cross-examination, need not be provided in every case where a
pre-termination
Page 416 U. S. 201
hearing of some kind is required by due process or provided by
the statute.
In
Goldberg v. Kelly, the Court struck a different note
on procedures. Although stating that the only function of the
pre-termination hearing was "to produce an initial determination of
the validity of the welfare department's grounds for discontinuance
of payments," and seemingly adopting a probable cause standard, the
Court required cross-examination of witnesses relied upon by the
department. The Court was careful to observe, however, that these
procedural rules were "tailored to the capacities and circumstances
of those who are to be heard." 397 U.S. at
397 U. S. 267,
268-269. The decision to cut off AFDC welfare payments leaves the
recipient literally without any means to survive or support a
family. While this level of deprivation may not be insisted upon as
a necessary condition for requiring some kind of pre-termination
hearing, it may well be decisive in requiring the Government to
provide specific procedures at the pre-termination stage. The
greater the level of deprivation which may flow from a decision,
the less one may tolerate the risk of a mistaken decision,
cf.
Morrissey v. Brewer, supra, and thus the Court in
Goldberg, while maintaining that the pre-termination
hearing was in the nature of a probable cause determination, was
less willing to allow a margin of error as to probable cause. Rules
of procedure are often shaped by the risk of making an erroneous
determination.
See In re Winship, 397 U.
S. 358,
397 U. S. 368
(1970) (Harlan, J., concurring). Indeed, all that was specifically
not required in
Goldberg was a complete record and a
comprehensive opinion. 397 U.S. at
397 U. S.
267.
In this case, the employee is not totally without prospect for
some form of support during the period between the pre-termination
and final hearing on appeal, though it may not be equivalent in
earnings or tenure
Page 416 U. S. 202
to his prior competitive service position. Although the employee
may not be entitled to unemployment compensation,
see Christian
v. New York Dept. of Labor, 414 U. S. 614
(1974), since he has been terminated for cause, he may get some
form of employment in the private sector, and, if necessary, may
draw on the welfare system in the interim. Given this basic floor
of need, which the system provides, we should not hold that
procedural due process is so inflexible as to require the Court to
hold that the procedural protections of a written statement and
oral presentation to an impartial hearing examiner provided by
regulation, are insufficient. The Court stated in
Richardson v.
Wright, 405 U. S. 208
(1972), that new regulations of the Department of Health,
Education, and Welfare required that Social Security disability
payments were not to be suspended in a pre-termination hearing
without "notice of a proposed suspension and the reasons therefor,
plus an opportunity to submit rebuttal evidence," but could be
without an oral presentation, since,
"[i]n the context of a comprehensive complex administrative
program, the administrative process must have a reasonable
opportunity to evolve procedures to meet needs as they arise."
Cf. Torres v. New York State Department of
Labor, 333 F.
Supp. 341 (SDNY 1971),
aff'd, 405 U.S. 949 (1972).
Necessarily, to some extent, the Court must share with Congress, in
an area where one is called upon to judge the efficacy of
particular procedures, a role in defining constitutional
requirements, and Congress explicitly left it to the discretion of
the agency as to whether such procedures were required. I would not
upset that judgment in this case.
In accord with these views, I would affirm the judgment of the
three-judge court, ordering reinstatement and backpay, due to the
failure to provide an impartial hearing officer at the
pre-termination hearing. I would
Page 416 U. S. 203
reverse that part of the court's order enjoining the application
of the statute on First Amendment vagueness and overbreadth
grounds.
[
Footnote 3/1]
The full text of the Act's pertinent provisions provides:
"(a) An individual in the competitive service may be removed or
suspended without pay only for such cause as will promote the
efficiency of the service."
"(b) An individual in the competitive service whose removal or
suspension without pay is sought is entitled to reasons in writing
and to -- "
"(1) notice of the action sought and of any charges preferred
against him;"
"(2) a copy of the charges;"
"(3) a reasonable time for filing a written answer to the
charges, with affidavits; and"
"(4) a written decision on the answer at the earliest
practicable date."
"Examination of witnesses, trial, or hearing is not required but
may be provided in the discretion of the individual directing the
removal or suspension without pay. Copies of the charges, the
notice of hearing, the answer, the reasons for and the order of
removal or suspension without pay, and also the reasons for
reduction in grade or pay, shall be made a part of the records of
the employing agency, and, on request, shall be furnished to the
individual affected and to the Civil Service Commission."
"(c) This section applies to a preference eligible employee as
defined by section 7511 of this title only if he so elects. This
section does not apply to the suspension or removal of an employee
under section 7532 of this title."
5 U.S.C. § 7501.
[
Footnote 3/2]
The regulation of the Civil Service Commission as to "Proscribed
actions," 5 CFR § 735201a, provides:
"An employee shall avoid any action, whether or not specifically
prohibited by this subpart, which might result in, or create the
appearance of:"
"(a) Using public office for private gain;"
"(b) Giving preferential treatment to any person;"
"(c) Impeding Government efficiency or economy;"
"(d) Losing complete independence or impartiality;"
"(e) Making a Government decision outside official channels;
or"
"(f) Affecting adversely the confidence of the public in the
integrity of the Government."
The regulations, 5 CFR § 735.209, also provided:
"An employee shall not engage in criminal, infamous, dishonest,
immoral, or notoriously disgraceful conduct, or other conduct
prejudicial to the Government."
[
Footnote 3/3]
The Civil Service Procedural Regulations, 5 CFR § 752.202,
provide in relevant part:
"(a)
Notice of proposed adverse action. (1) Except as
provided in paragraph (c) of this section, an employee against whom
adverse action is sought is entitled to at least 30 full days'
advance written notice stating any and all reasons, specifically
and in detail, for the proposed action."
"(2) Subject to the provisions of subparagraph (3) of this
paragraph, the material on which the notice is based and which is
relied on to support the reasons in that notice, including
statements of witnesses, documents, and investigative reports or
extracts there from, shall be assembled and made available to the
employee for his review. The notice shall inform the employee where
he may review that material."
"(3) Material which cannot be disclosed to the employee, or to
his designated physician under § 294.401 of this chapter, may not
be used by an agency to support the reasons in the notice."
"(b)
Employee's answer. Except as provided in paragraph
(c) of this section, an employee is entitled to a reasonable time
for answering a notice of proposed adverse action and for
furnishing affidavits in support of his answer. The time to be
allowed depends on the facts and circumstances of the case, and
shall be sufficient to afford the employee ample opportunity to
review the material relied on by the agency to support the reasons
in the notice and to prepare an answer and secure affidavits. The
agency shall provide the employee a reasonable amount of official
time for these purposes if he is otherwise in an active duty
status. If the employee answers, the agency shall consider his
answer in reaching its decision. The employee is entitled to answer
personally, or in writing, or both personally and in writing. The
right to answer personally includes the right to answer orally in
person by being given a reasonable opportunity to make any
representations which the employee believes might sway the final
decision on his case, but does not include the right to a trial or
formal hearing with examination of witnesses. When the employee
requests an opportunity to answer personally, the agency shall make
a representative or representatives available to hear his answer.
The representative or representatives designated to hear the answer
shall be persons who have authority either to make a final decision
on the proposed adverse action or to recommend what final decision
should be made."
"
* * * *"
"(f)
Notice of adverse decision. The employee is
entitled to notice of the agency's decision at the earliest
practicable date. The agency shall deliver the notice of decision
to the employee at or before the time the action will be made
effective. The notice shall be in writing, be dated, and inform the
employee:"
"(1) Which of the reasons in the notice of proposed adverse
action have been found sustained and which have been found not
sustained. . . ."
[
Footnote 3/4]
The Veterans' Preference Act of 1944 authorizes Civil Service
Commission appeals from adverse agency decisions.
See
U.S.C. § 7701. The Act itself applies only to veterans of military
service, 5 U.S.C. §§ 2108, 7511, but Executive Order No. 11491,
printed in note following 5 U.S. C § 7301, extends the Act's
protections to all nonpreference eligible employees in the
classified service.
[
Footnote 3/5]
Appellee's response stated:
"The charges and proceedings brought against Mr. Kennedy are
invalid and, in fact, unlawful for the following two reasons, among
others:"
"
First, Mr. Kennedy is entitled to a fair and impartial
hearing prior to any adverse action being taken against him. This
means a proceeding where there is a genuinely impartial hearing
officer, a proceeding where there is an opportunity to offer
witnesses and confront and cross-examine those furnishing evidence
against him, a proceeding where he will have an opportunity to
respond to all evidence offered against him, a proceeding where a
written record is made of all evidence, testimony and argument, a
proceeding where the decision will be based exclusively on the
record, a proceeding where the decision will contain findings of
fact and conclusions of law with regard to all controverted issues,
together with an analysis indicating the manner in which the
controversies were resolved."
"The present adverse action procedure fails in substantial ways
to provide all of these rudimentary elements required for a due
process hearing. It therefore fails to meet the requirements of due
process secured by the Fifth Amendment to the Constitution of the
United States, and is hence, invalid, null and void."
"
Second, the charges brought against Mr. Kennedy are
facially insufficient and illegal. As the adverse action makes
clear, Mr. Kennedy is being punished for his conversations
(inaccurately set forth in the adverse action) with union members
and the public. Since the First Amendment protects such
conversations, these allegations are totally without merit."
App. 62.
[
Footnote 3/6]
My views as to the requirements of due process where property
interests are at stake does not deal with the entirely separate
matter and requirements of due process when a person is deprived of
liberty.
[
Footnote 3/7]
Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46
(1950),
aff'd, by an equally divided court, 341 U.S. 918
(1951), is not controlling. "The basis of this holding has been
thoroughly undermined in the ensuing years" with the rejection of
the "right-privilege" distinction.
Board of Regents v.
Roth, 408 U. S. 564,
408 U. S. 571
n. 9 (1972).
[
Footnote 3/8]
Wisconsin v. Constantineau, 400 U.
S. 433 (1971), is not properly part of this quartet of
cases, since no hearing was apparently ever provided to challenge
the posting of one's name as an excessive drinker.
[
Footnote 3/9]
See generally Freedman, Summary Action by
Administrative Agencies, 40 U.Chi.L.Rev. 1 (1972).
[
Footnote 3/10]
See Handler, Justice for the Welfare Recipient: Fair
Hearings in AFDC -- The Wisconsin Experience, 43 Soc.Serv.Rev. 12,
22 (1969).
[
Footnote 3/11]
Congressman Calder stated that the Act would
"give assurance and confidence to the employees that they will
at least get a square deal, and will not permit of supervisory or
executive officers filing charges of one kind against an employee
and having him removed from the service or reduced in salary on
evidence submitted on matters entirely foreign to the original
charges that the employee has answered in writing."
48 Cong.Rec. 4654 (1912).
Congressman Konop stated:
"Any man in public service should have a right as a citizen to
know why he is discharged from public duty, and, as a citizen,
should certainly have a chance to be heard."
Id. at 5207.
[
Footnote 3/12]
In
Pickering v. Board of Education, 391 U.
S. 563,
391 U. S. 579
n. 2 (1968), where the Court set aside a discharge by a Board of
Education of a teacher for writing a letter to a newspaper
attacking the Board, the trier of fact, the Board, was the same
body that was the object of accusations in the letter. Although the
Court did not rule on the due process question, since it was first
raised here, it observed that "we do not propose to blind ourselves
to the obvious defects in the factfinding process occasioned by the
Board's multiple functioning
vis-a-vis appellant," citing
Tumey v. Ohio, 273 U. S. 510
(1927), and
In re Murchison, 349 U.
S. 133 (1955).
[
Footnote 3/13]
We further note that appellants suggest that "the Act and
regulations, fairly construed, require the determination of cause
to be made without bias." Brief for Appellants 24 n. 12.
MR. JUSTICE DOUGLAS, dissenting.
The federal bureaucracy controls a vast conglomerate of people
who walk more and more submissively to the dictates of their
superiors. Our federal employees have lost many important political
rights.
CSC v. Letter Carriers, 413 U.
S. 548, held that they could be barred from taking "an
active part in political management or in political campaigns," a
restriction that some of us thought to be unconstitutional,
id. at
413 U. S. 595
et seq. (DOUGLAS, J., dissenting). Today's decision
deprives them of other important First Amendment rights.
Heretofore, as my Brother MARSHALL has shown, we have insisted
that, before a vital stake of the individual in society is
destroyed by government, he be given a hearing on the merits of the
government's claim. Among these personal and vital stakes are
welfare benefits,
Goldberg v. Kelly, 397 U.
S. 254; the weekly wage of a worker,
Sniadach v.
Family Finance Corp., 395 U. S. 337; a
person's driver's license,
Bell v. Burson, 402 U.
S. 535; repossession of household goods,
Fuentes v.
Shevin, 407 U. S. 67; the
position of a tenured professor in a state educational institution,
Board of Regents v. Roth, 408 U.
S. 564; revocation of parole,
Morrissey v.
Brewer, 408 U. S. 471.
There is more than employment and a job at issue in this case.
The stake of the federal employee is not only in a livelihood, but
in his right to speak guaranteed by the First Amendment. He is
charged with having stated that his superior and the superior's
assistant had attempted to bribe a representative of a community
action organization with whom the agency (OEO) had
Page 416 U. S. 204
dealings. He is charged with having stated that those men
offered a bribe of $100,000 in OEO funds to that organization if
its representative would sign a statement against appellee and
another CEO employee. This statement, in my view, was on a subject
in the public domain. We all know, merely by living in Washington,
D.C., the storms that have swept through that agency and its
branches. It has dealt with inflammatory problems in the solution
of which inflammatory utterances are often made. I realize that it
is the tradition of the Court to "balance" the right of free speech
against other governmental interests, and to sustain the First
Amendment right only when the Court deems that, in a given
situation, its importance outweighs competing interests. That was
the approach in
Pickering v. Board of Education,
391 U. S. 563,
where the Court deemed what a teacher said against the school board
was more important than the board's sensibilities. The Court,
however, reserved decision where the comments of an employee
involved "either discipline by immediate superiors or harmony among
coworkers,"
id. at
391 U. S. 570.
That is one reason why Mr. Justice Black and I concurred in the
result citing,
inter alia, our opinion in
Time, Inc.
v. Hill, 385 U. S. 374. Mr.
Justice Black said that the "balancing" or "weighing" doctrine
"plainly encourages and actually invites judges to choose for
themselves between conflicting values, even where, as in the First
Amendment, the Founders made a choice of values, one of which is a
free press. Though the Constitution requires that judges swear to
obey and enforce it, it is not altogether strange that all judges
are not always dead set against constitutional interpretations that
expand their powers, and that, when power is once claimed by some,
others are loath to give it up,"
id. at
385 U. S.
399-400. The fact that appellee in the present case
inveighed
Page 416 U. S. 205
against his superior is irrelevant. The matter on which he spoke
was in the public domain. His speaking may well have aroused such
animosity in his superior as to disqualify him from being in charge
of disciplinary proceedings, [
Footnote
4/1] and conceivably it could cause disharmony among workers.
And these consequences are quite antagonistic to the image which
agencies have built. Their dominant characteristic is the
application of Peter's Inversion.
See L. Peter & R.
Hull, The Peter Principle 226 (Bantam ed.1970). In a few words,
Peter's Inversion marks the incompetent cadre's interest in an
employee's
input, not his
output. [
Footnote 4/2]
His
input reflects his attitude toward the cadre, and
toward his work. A pleasant manner, promotion of staff harmony,
servility to the cadre, and promptness, civility, and
submissiveness are what count. The result is a
Page 416 U. S. 206
great leveling of employees. They hear the beat of only one
drum, and march to it. These days, employers have psychological
tests by which they can separate the ingenious, off-beat character
who may make trouble from the more subservient type. It is, of
course, none of a court's problem what the employment policies may
be. [
Footnote 4/3] But once an
employee speaks out on a public issue and is punished for it, we
have a justiciable issue. Appellee is, in my view, being penalized
by the Federal Government for exercising his right to speak out.
The excuse or pretense is an Act of Congress and an agency's
regulations promulgated under it in the teeth of the First
Amendment: "Congress shall make no law . . . abridging the freedom
of speech, or of the press. . . ." Losing one's job with the
Federal Government because of one's discussion of an issue in the
public domain is certainly an abridgment of speech.
[
Footnote 4/1]
A judge so reviled is normally not the one to sit in judgment in
a criminal contempt proceeding.
Mayberry v. Pennsylvania,
400 U. S. 455.
Cf. Goldberg v. Kelly, 397 U. S. 254,
397 U. S.
271.
[
Footnote 4/2]
"The competence of an employee is determined
not by
outsiders, but by his superior in the hierarchy. If the
superior is still at a level of competence, he may evaluate his
subordinates in terms of the performance of useful work -- for
example, the applying of medical services or information, the
production of sausages or table legs or achieving whatever are the
stated aims of the hierarchy. That is to say,
he evaluates
output."
"But if the superior has reached his level of incompetence, he
will probably rate his subordinates in terms of institutional
values; he will see competence as the behavior that supports the
rules, rituals and forms of the
status quo. Promptness,
neatness, courtesy to superiors, internal paperwork, will be highly
regarded. In short, such an official
evaluates input. . .
."
"In such instances,
internal consistency is valued more
highly than efficient service: this is
Peter's
Inversion. A professional automaton may also be termed a
'Peter's Invert.' He has inverted the means-end relationship."
L. Peter & R. Hull, The Peter Principle 25 (Bantam ed.
1970).
[
Footnote 4/3]
Apart from discrimination based on race,
Griggs v. Duke
Power Co., 401 U. S. 424, or
on other suspect classifications such a sex.
See id. at
401 U. S. 436;
42 U.S.C. § 2000e-2;
Frontiero v. Richardson, 411 U.
S. 677,
411 U. S. 682
et seq.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS and MR.
JUSTICE BRENNAN concur, dissenting.
I would affirm the judgment of the District Court, both in its
holding that a tenured Government employee must be afforded an
evidentiary hearing prior to a dismissal for cause and in its
decision that 5 U.S.C. § 7501 is unconstitutionally vague and
overbroad as a regulation of employees' speech.
The first issue in this case is a relatively narrow one --
whether a federal employee in the competitive service, entitled by
statute to serve in his job without fear of
Page 416 U. S. 207
dismissal except for cause, [
Footnote 5/1] must be given an evidentiary hearing
before he is discharged. We are hardly writing on a clean slate in
this area. In just the last five years, the Court has held that
such a hearing must be afforded before wages can be garnished,
Sniadach v. Family Finance Corp., 395 U.
S. 337 (1969); welfare benefits terminated,
Goldberg
v. Kelly, 397 U. S. 254
(1970); a driver's license revoked,
Bell v. Burson,
402 U. S. 535
(1971); consumer goods repossessed,
Fuentes v. Shevin,
407 U. S. 67
(1972); parole revoked,
Morrissey v. Brewer, 408 U.
S. 471 (1972); or a tenured college professor fired by a
public educational institution,
Board of Regents v. Roth,
408 U. S. 564
(1972);
Perry v. Sindermann, 408 U.
S. 593 (1972).
A
In the
Roth and
Sindermann cases, MR. JUSTICE
STEWART established the framework for analysis to determine in what
circumstances the Due Process Clause demands a hearing. He observed
that, although due process is a flexible concept, it is not
unlimited in application.
"The requirements of procedural due process apply only to the
deprivation of interests encompassed by the Fourteenth Amendment's
protection of liberty and property."
Roth, supra, at
408 U. S. 569.
Thus, the first issue to be decided is whether appellee had an
interest in his tenured Government employment such that his
discharge amounts to a deprivation of liberty or property.
The decisions of this Court have given constitutional
recognition to the fact that, in our complex modern society, wealth
and property take many forms. [
Footnote
5/2] We
Page 416 U. S. 208
have said that property interests requiring constitutional
protection "extend well beyond actual ownership of real estate,
chattels, or money."
Roth, supra, at
408 U. S. 572.
They extend as well to "safeguard . . . the security of interests
that a person has already acquired in specific benefits."
Id. at
408 U. S. 576.
The test for whether a protected interest has been infringed
reflects this broad concept of "property":
"To have a property interest in a benefit, a person . . . must .
. . have a legitimate claim of entitlement to it. It is a purpose
of the ancient institution of property to protect those claims upon
which people rely in their daily lives, reliance that must not be
arbitrarily undermined."
Id. at
408 U. S.
577.
Accordingly, in
Goldberg v. Kelly, supra, the Court
found that public assistance recipients had such a claim of
entitlement to welfare benefits grounded in the statute defining
eligibility. In
Bell v. Burson, supra, the Court held that
a driver's license, once issued, becomes an important property
interest because its "continued possession may become essential in
the pursuit of a livelihood." 402 U.S. at
402 U. S. 539.
More to the point, in
Roth, the Court
Page 416 U. S. 209
surveyed the constitutional restraints applicable in the area of
public employment:
"[T]he Court has held that a public college professor dismissed
from an office held under tenure provisions,
Slochower v. Board
of Education, 350 U. S. 551, and college
professors and staff members dismissed during the terms of their
contracts,
Wieman v. Updegraff, 344 U. S.
183, have interests in continued employment that are
safeguarded by due process."
408 U.S. at
408 U. S.
576-577.
See also Connell v. Higginbotham,
403 U. S. 207
(1971). In
Perry v. Sindermann, supra, we found a property
interest in the implied tenure policy of a state university.
We have already determined that a legitimate claim of
entitlement to continued employment absent "sufficient cause" is a
property interest requiring the protections of procedural due
process. [
Footnote 5/3] Thus, there
can be little doubt that appellee's tenured Government employment,
from which he could not legally be dismissed except for cause, must
also be a "property" interest for the purposes of the Fifth
Amendment. The job security appellee enjoyed is clearly one of
"those claims upon which people rely in their daily lives."
Roth, supra, at
408 U. S. 577.
And appellee's interest in continued public employment encompassed
more than just the periodic accrual of wages. His dismissal also
affects his valuable statutory entitlements to retirement credits
and benefits, 5 U.S.C. §§ 8301, 8311-8322, 8331-8348; periodic
salary increases, 5 U.S.C. § 5335; and life and health insurance, 5
U.S.C. §§ 8701-8716, 8901-8913 (1970 ed. and Supp II).
We are in agreement that appellee does have a claim of
entitlement to his Government job, absent proof of
Page 416 U. S. 210
specified misconduct. MR. JUSTICE REHNQUIST explains, however,
that this claim is founded only in statute, and that the statute
which guarantees tenure also provides that a hearing is not
required before discharge. He concludes that "the property interest
which appellee had in his employment was itself conditioned by the
procedural limitations which had accompanied the grant of that
interest,"
ante at
416 U. S. 155,
wryly observing that "a litigant in the position of appellee must
take the bitter with the sweet,"
ante at
416 U. S.
154.
Courts once considered procedural due process protections
inapplicable to welfare on much the same theory -- that, "in
accepting charity, the appellant has consented to the provisions of
the law under which charity is bestowed." [
Footnote 5/4] Obviously, this Court rejected that
reasoning in
Goldberg, supra, where we held that
conditions under which public assistance was afforded, which did
not include a pre-termination hearing, were violative of due
process. [
Footnote 5/5] In
Sindermann, supra, the Court held that the Constitution
required a hearing before dismissal even where the implicit grant
of tenure did not encompass the right to such a hearing. In
Morrissey v. Brewer, 408 U. S. 471
(1972), the Court held that, although the limited grant of liberty
afforded by parole was conditioned by statute on the possibility of
revocation without a prior evidentiary hearing, such a hearing was
constitutionally required. In
Bell v. Burson, supra,
the
Page 416 U. S. 211
state statute under which drivers' licenses were issued provided
for the suspension of an uninsured motorist's license without a
prior hearing. The Court nonetheless held that a hearing was
required before the suspension could be effected. In none of these
cases did the Court consider a statutory procedure to be an
inherent limitation on the statutorily created liberty or property
interest. [
Footnote 5/6] Rather,
once such an interest was found, the Court determined whether
greater procedural protections were required by the Due Process
Clause than were accorded by the statute.
Applying that analysis here requires us to find that, although
appellee's property interest arose from statute, the deprivation of
his claim of entitlement to continued employment would have to meet
minimum standards of procedural due process regardless of the
discharge procedures provided by the statute. Accordingly, a
majority of the Court rejects MR. JUSTICE REHNQUIST's argument
that, because appellee's entitlement arose from statute, it could
be conditioned on a statutory limitation of procedural due process
protections, an approach which would render such protection
inapplicable to the deprivation of any statutory benefit -- any
"privilege" extended by Government -- where a statute prescribed a
termination procedure, no matter how arbitrary or unfair. It would
amount to nothing less than a return, albeit in somewhat different
verbal garb, to the thoroughly discredited distinction between
rights and privileges which once seemed to govern the applicability
of procedural due process. [
Footnote
5/7]
Page 416 U. S. 212
B
We have repeatedly observed that due process requires that a
hearing be held "at a meaningful time and in a meaningful manner,"
Armstrong v. Manzo, 380 U. S. 545,
380 U. S. 552
(1965), but it remains for us to give content to that general
principle in this case by balancing the Government's asserted
interests against those of the discharged employee.
Goldberg v.
Kelly, 397 U.S. at
397 U. S. 263;
see Cafeteria Workers v. McElroy, 367 U.
S. 886,
367 U. S. 895
(1961).
The interests of a public employee in a secure Government job
are as weighty as other interests which we have found to require at
least the rudimentary protection of an evidentiary hearing as a
precondition to termination.
"This Court has often had occasion to note that the denial of
public employment is a serious blow to any citizen. . . .
Employment is one of the greatest, if not the greatest, benefits
that governments offer in modern-day life."
Roth, 408 U.S. at
408 U. S. 589
(MARSHALL, J., dissenting).
See Perry v. Sindermann, supra;
Connell v. Higginbotham, 403 U. S. 207
(1971);
Keyishian v. Board
of
Page 416 U. S. 213
Regents, 385 U. S. 589
(1967);
Cramp v. Board of Public Instruction, 368 U.
S. 278,
368 U. S. 288
(1961);
Ant-Fascist Committee v. McGrath, 341 U.
S. 123,
341 U. S. 185
(1951) (Jackson, J., concurring);
United State's v.
Lovett, 328 U. S. 303,
328 U. S.
316-317 (1946). The Court has recognized the vital
importance of employment in related contexts. In
Sniadach v.
Family Finance Corp., the Court expressed its particular
concern that "garnishment [of wages] often meant the loss of a
job," 395 U.S. at
395 U. S. 340,
and in
Bell v. Burson, supra, we relied heavily on the
fact that a driver's license may be "essential in the pursuit of a
livelihood," 402 U.S. at
402 U. S. 539.
In
Greene v. McElroy, 360 U. S. 474,
360 U. S. 508
(1959), the Court construed federal security clearance regulations
to avoid the constitutional issues that would be presented if the
petitioner were deprived "of his job in a proceeding in which he
was not afforded the safeguards of [procedural due process]."
See id. at
360 U. S.
506-507;
Willner v. Committee on Character,
373 U. S. 96,
373 U. S.
103-104 (1963).
An exhaustive study by the United States Administrative
Conference of the problem of agency dismissals led the author of
the Conference's report to observe:
"One cannot escape the conclusion, however, that the government
employee who is removed from his job loses something of tremendous
value that, in a market of declining demand for skills, may not be
replaceable. [
Footnote 5/8]"
And the report also observes:
"[O]ne must acknowledge what seems to be an accepted, if
regrettable, fact of life: removal from government employment for
cause carries a stigma
Page 416 U. S. 214
that is probably impossible to outlive. Agency personnel
officers are generally prepared to concede . . . that it is
difficult for the fired government worker to find employment in the
private sector. [
Footnote 5/9]"
Dismissal from public employment for cause may also, therefore,
implicate liberty interests in imposing on the discharged employee
a stigma of incompetence or wrongdoing that forecloses "his freedom
to take advantage of other employment opportunities."
Roth,
supra, at
408 U. S. 573;
see Wisconsin v. Constantineau, 400 U.
S. 433,
400 U. S. 437
(1971).
Given the importance of the interest at stake, the discharged
employee should be afforded an opportunity to test the strength of
the evidence of his misconduct by confronting and cross-examining
adverse witnesses and by presenting witnesses in his own behalf,
whenever there are substantial disputes in testimonial evidence.
See Morrissey v. Brewer, 408 U.S. at
408 U. S. 487.
A dismissal for cause often involves disputed questions of fact
raised by accusations of misconduct. Mistakes of identity,
distortions caused by the failure of information sources, faulty
perceptions or cloudy memories, as well as fabrications born of
personal antagonisms are among the factors which may undermine the
accuracy of the factual determinations upon which dismissals are
based. The possibility of error is not insignificant. Almost a
fourth of all appeals from adverse agency actions result in
reversal. [
Footnote 5/10]
In our system of justice, the right of confrontation
Page 416 U. S. 215
provides the crucible for testing the truth of accusations such
as those leveled by appellee's superior and strenuously denied by
appellee.
"In almost every setting where important decisions turn on
questions of fact, due process requires an opportunity to confront
and cross-examine adverse witnesses."
Goldberg v. Kelly, 397 U.S. at
397 U. S. 269
(citations omitted). [
Footnote
5/11] The
Goldberg Court's citation to a well known
passage from
Greene v. McElroy, 360 U.
S. 474 (1959), is equally applicable to a dismissal from
public employment for cause as to a termination of welfare
benefits.
"'Certain principles have remained immutable in our
jurisprudence. One of these is that, where government action
seriously injures an individual, and the reasonableness of the
action depends on fact findings, the evidence used to prove the
Government's case must be disclosed to the individual so that he
has an opportunity to sow that it is untrue. While this is
important in the case of documentary evidence, it is even more
important where the evidence consists of the testimony of
individuals whose memory might be faulty or who, in fact, might be
perjurers or persons motivated by malice, vindictiveness,
intolerance, prejudice or jealousy. We have formalized these
protections in the requirements of confrontation and
cross-examination.'"
Id. at
360 U. S.
496-497, quoted in
Goldberg v. Kelly, supra, at
397 U. S. 270.
See also Chambers v. Mississippi, 410 U.
S. 284,
410 U. S.
295-298 (1973);
Pointer v. Texas, 380 U.
S. 400 (1965).
Page 416 U. S. 216
This case and
Goldberg involve the termination of
income, whether in salary or public assistance payments, upon which
the recipient may depend for basic sustenance. A person should not
be deprived of his livelihood "in a proceeding in which he was not
afforded the safeguards of confrontation and cross-examination."
Greene, supra, at
360 U. S. 508;
see Jenkins v. McKeithen,
395 U. S. 411,
395 U. S.
423-429 (1969);
Willner v. Committee on
Character, 373 U.S. at
373 U. S. 103.
The stakes are just too high and the possibility of misjudgment too
great to allow dismissal without giving the tenured public employee
an opportunity to contest its basis and produce evidence in
rebuttal.
See Goldberg, supra, at
397 U. S.
266.
It also seems clear that, for the hearing to be meaningful, the
hearing officer must be independent and unbiased, and his decision
be entitled to some weight. We addressed the importance of this
element of due process in
Goldberg, supra, where we found
the requirements of due process were not met by the review of a
welfare termination decision by the caseworker who was, in effect,
also the complainant. 397 U.S. at
397 U. S. 271.
In
Morrissey v. Brewer, supra, we held that an independent
decisionmaker must determine whether reasonable grounds exist for
parole revocation, because an "officer directly involved in making
recommendations cannot always have complete objectivity in
evaluating them." 408 U.S. at
408 U. S. 486.
The need for an independent decisionmaker is particularly crucial
in the public employment context, where the reason for the
challenged dismissal may well be related to some personal
antagonism between the employee and his superior, as appears to be
the case here. [
Footnote 5/12]
See Pickering v. Board of Education, 391 U.
S. 563,
391 U. S.
578-579, Appendix n. 2 (1968).
Page 416 U. S. 217
C
A discharged federal worker in the competitive service is, in
fact, guaranteed a full evidentiary hearing before an impartial
decisionmaker whose report is entitled to considerable weight.
[
Footnote 5/13] But the timing of
the hearing is discretionary with the employing agency,
see 5 CFR § 771.208(a) (1972), and, in many agencies, such
as the OEO, the hearing comes long after the employee has been
removed from the Government service and payroll. In a sense, then,
the real issue is not whether appellee must be accorded an
evidentiary hearing, but only whether that hearing should have been
afforded
before his discharge became effective. Although
the nature of the hearing required by due process is determined by
a balancing process, that hearing must be held at a meaningful
time. Accordingly, the Court has embraced a general presumption
that one who is constitutionally entitled to a hearing should be
heard before the deprivation of his liberty or property takes
place. Thus, in
Boddie v. Connecticut, 401 U.
S. 371 (1971), the Court observed that the fact that
"the hearing . . . is not fixed in form does not affect its root
requirement
Page 416 U. S. 218
that an individual be given an opportunity for a hearing
before he is deprived of any significant property
interest, except for extraordinary situations where some valid
governmental interest is at stake that justifies postponing the
hearing until after the event."
Id. at
401 U. S.
378-379. (Emphasis in original.) In
Bell v. Burson,
supra, we held that,
"except in emergency situations . . . due process requires that,
when a State seeks to terminate an [important property] interest .
. . it must afford 'notice and opportunity for hearing . . . '
before the termination becomes effective."
402 U.S. at
402 U. S. 542
(emphasis in original) (footnote omitted). In
Goldberg v.
Kelly, supra, the Court found that an evidentiary hearing held
after the termination of welfare benefits was inadequate to satisfy
constitutional requirements. [
Footnote 5/14]
Even if we accept appellants' assertion that a subsequent
hearing affords the discharged employee an opportunity to clear his
name, [
Footnote 5/15] the worker
still has a significant interest in retaining his job pending a
full hearing. [
Footnote 5/16]
Almost a fourth of all appeals from agency
Page 416 U. S. 219
dismissals result in a finding that the termination was illegal.
[
Footnote 5/17] And the delay
from discharge to ultimate vindication at a hearing on appeal is
far from insubstantial. More than 75% of adverse personnel actions
take more than two months to process; over half take more than
three months, and a not insignificant number take more than a year.
[
Footnote 5/18] The longer the
period between the discharge and the hearing, the more devastating
will be the impact of the loss of employment.
During the period of delay, the employee is off the Government
payroll. His ability to secure other employment to tide himself
over may be significantly hindered by the outstanding charges
against him. [
Footnote 5/19] Even
aside from the stigma that attends a dismissal for cause, few
employers will be willing to hire and train a new employee knowing
that he will return to a former Government position as soon as an
appeal is successful. [
Footnote
5/20]
Page 416 U. S. 220
And in many States, including Illinois, where appellee resides,
a worker discharged for cause is not even eligible for unemployment
compensation. [
Footnote 5/21]
Many workers, particularly those at the bottom of the pay scale,
will suffer severe and painful economic dislocations from even a
temporary loss of wages. Few public employees earn more than enough
to pay their expenses from month to month.
See Sampson v.
Murray, 415 U. S. 61,
415 U. S. 97
(1974) (MARSHALL, J., dissenting). Like many of us, they may be
required to meet substantial fixed costs on a regular basis and
lack substantial savings to meet those expenses while not receiving
a salary. The loss of income for even a few weeks may well impair
their ability to provide the essentials of life -- to buy food,
meet mortgage or rent payments, or procure medical services.
Ricucci v. United States, 192 Ct.Cl. 1, 9-11, 425 F.2d
1252, 1256-1257 (1970) (Skelton, J., concurring). The plight of a
discharged employee may not be far different from that of the
welfare recipient in
Goldberg, who, "pending resolution of
a controversy . . . , may [be] deprive[d] . . . of the very means
by which to live while he waits." 397 U.S. at
397 U. S. 264.
Appellee, although earning an annual salary of $16,000 before his
dismissal, far above the mean salary for federal employees,
[
Footnote 5/22] was nonetheless
driven to the brink of financial ruin while he waited. He had to
borrow money to support his family, his debts went unpaid, his
family lost the protection of his health insurance, and, finally,
he was forced to apply for public
Page 416 U. S. 221
assistance. App. 128
et seq. In this context, justice
delayed may well be justice denied.
To argue that a dismissal from tenured government employment is
not a serious enough deprivation to require a prior hearing because
the discharged employee may draw on the welfare system in the
interim is to exhibit a gross insensitivity to the plight of these
employees. First, it assumes that the discharged employee will be
eligible for welfare. Often, welfare applicants must be all but
stripped of their worldly goods before being admitted to the
welfare roles; hence it is likely that the employee will suffer
considerable hardship before becoming eligible. He may be required
not only to exhaust his savings, but also to convert many of his
assets into cash for support before being able to fall back on
public assistance. He may have to give up his home or cherished
personal possessions in order to become eligible. The argument also
assumes all but instant eligibility which is, sadly, far from
likely even when all the employee's other sources of support have
been depleted. Moreover, rightly or wrongly, many people consider
welfare degrading, and would decline public assistance even when
eligible. Finally, the level of subsistence provided by welfare is
minimal, certainly less than one is apt to expect from steady
employment. The substitution of a meager welfare grant for a
regular paycheck may bring with it painful and irremediable
personal as well as financial dislocations. A child's education may
be interrupted, a family's home lost, a person's relationship with
his friends and even his family may be irrevocably affected. The
costs of being forced, even temporarily, onto the welfare rolls
because of a wrongful discharge from tenured Government employment
cannot be so easily discounted.
Nor does the availability of backpay upon an ultimate
Page 416 U. S. 222
finding that the dismissal was improper alleviate the compelling
nature of the employee's plight.
Cf. Sampson v. Murray,
415 U.S. at
415 U. S. 97
(MARSHALL, J., dissenting). In
Sniadach v. Family Finance
Corp., supra, the Court recognized that the employee had an
interest in the enjoyment of his wages as they accrued, and noted
that even a temporary loss of salary could put a wage earner below
the poverty level or "drive a wage-earning family to the wall." 395
U.S. at
395 U. S.
341-342. Thus, we held that a wage earner is entitled to
a hearing prior to the garnishment of his wages even though he
would ultimately get his frozen earnings back when and if he
prevailed in a suit on the merits.
See also id. at
395 U. S. 343
(Harlan, J., concurring). And in
Fuentes v. Shevin,
407 U. S. 67
(1972), the Court held that due process required a hearing before a
seizure of property by writ of replevin, observing:
"If the right to notice and a hearing is to serve its full
purpose, then it is clear that it must be granted at a time when
the deprivation can still be prevented. At a later hearing, an
individual's possessions can be returned to him if they were
unfairly or mistakenly taken in the first place. Damages may even
be awarded to him for wrongful deprivation. But no later hearing
and no damage award can undo the fact that the arbitrary taking
that was subject to the right of procedural due process had already
occurred. 'This Court has not . . . embraced the general
proposition that a wrong may be done if it can be undone.'"
Id. at
407 U. S. 81-82.
The
Fuentes Court, applying these considerations, albeit
in dicta, observed that,
"[i]n cases involving deprivations of other interests, such as
government employment, the Court similarly has required an
unusually important governmental need to outweigh the right to a
prior hearing."
Id. at
407 U. S. 91 n.
23.
Page 416 U. S. 223
The Court has recognized a number of instances where a vital
governmental interest may outweigh the right to a prior hearing,
including the need to seize property to
"collect the internal revenue of the United States, to meet the
needs of a national war effort, to protect against the economic
disaster of a bank failure, and to protect the public from
misbranded drugs and contaminated foods."
Id. at
407 U. S. 92
(footnotes omitted). [
Footnote
5/23] Such a vital interest is clearly lacking here.
The Government's asserted interests in not affording a
pre-dismissal hearing are twofold. First, appellants argue that the
delay in holding the hearing makes the functioning of the agency
more efficient. We rejected a similar rationale in
Goldberg, 397 U.S. at
397 U. S. 266,
and observed in
Fuentes, supra:
"A prior hearing always imposes some costs in time, effort, and
expense, and it is often more efficient to dispense with the
opportunity for such a hearing. But these rather ordinary costs
cannot outweigh the constitutional right. Procedural due process is
not intended to promote efficiency or accommodate all possible
interests: it is intended to protect the particular interests of
the person whose possessions [or property] are about to be
taken."
"' . . . [T]he Constitution recognizes higher values than speed
and efficiency. Indeed, one might fairly say of the Bill of Rights
in general, and the Due Process Clause in particular, that they
were designed to protect the fragile values of a vulnerable
citizenry from the overbearing concern for efficiency and efficacy
that may characterize praiseworthy government officials no less,
and perhaps more, than mediocre
Page 416 U. S. 224
ones.'"
407 U.S. at
407 U. S. 90-91,
n. 22 (citations omitted).
Moreover, the Government's interest in efficiency in this case
is entirely unconvincing. The applicable statute does not prohibit
prior hearings, but rather makes them discretionary with the
agency. Nine federal agencies, including the FCC, NLRB, HUD, HEW,
the Department of Justice, and the Civil Service Commission itself,
regularly accord evidentiary hearings prior to the dismissal of a
tenured employee. [
Footnote 5/24]
The Administrative Conference of the United States, on the basis of
its exhaustive study of federal agency proceedings for the
dismissal of employees in the competitive service, strongly
recommended that evidentiary hearings be held prior to discharge.
[
Footnote 5/25]
The Administrative Conference found that the evidence, although
inconclusive, indicates that the agencies that provided
pre-termination hearings closed adverse action proceedings more
quickly than those which did not hold an evidentiary hearing until
after the dismissal had been effected. It also found that the
delays in closing cases involving hearings are typically caused not
by the length of the hearings -- almost all are completed within a
day -- but rather by scheduling difficulties. And those agencies
which take three months or more to hold post-termination hearings
have little incentive to decide dismissal cases more promptly,
since the employee has already been discharged, and he bears most
of the costs of delay. If the hearing were required before
termination, agencies would have a far greater incentive to
decide
Page 416 U. S. 225
these cases expeditiously. [
Footnote 5/26] Finally, providing an evidentiary
hearing before the discharge might well obviate the practical and
constitutional need for a full post-termination proceeding.
[
Footnote 5/27]
The Government also argues that, if a supervisor were unable to
effect an immediate removal of a troublesome employee from his
agency, the discipline and efficiency of the whole office might be
disrupted. Under the prevailing practice, an agency may not dismiss
an employee until 30 days after he has received notice of the
charges against him and has had an opportunity to reply. Thus,
fellow workers and supervisors must now function with the
threatened employee in their midst for at least a month, and there
seems little reason why a hearing could not be held during that
30-day period. [
Footnote 5/28] If
the employee actually threatens to disrupt the operation of the
office, he could be put on administrative leave or temporarily
assigned to a less sensitive position pending his hearing, as
currently provided for by regulation. 5 CFR § 752.202(d).
Page 416 U. S. 226
The only pre-termination proceeding accorded appellee was a
"right of reply,"
see 5 CFR § 752.202(b), but the "right
of reply" falls far short of being the meaningful hearing which, in
my view, is constitutionally required. As the author of the
Administrative Conference Report observed:
"In most agencies . . . , an employee's right to reply simply
means that he may meet informally with a representative of the
agency and advance oral representations that he hopes will sway the
final decision. He has no right at this stage to present witnesses
or to confront and cross-examine the agency's witnesses. [
Footnote 5/29]"
(Footnotes omitted.)
The agency official before whom the employee appears need not be
the decisionmaker; he need only be able to recommend a decision.
Moreover, the hearing examiner or the person responsible for the
decision to discharge the employee may well be the complainant or
his direct subordinate. In the case before us, for example, the
decision as to whether appellee should be discharged was made by
the OEO Regional Director whom appellee had accused of misconduct.
The Regional Director assembled the evidence against appellee,
proposed the dismissal, then decided it should be effected; he
acted as complaining witness, prosecutor, and judge. The
meaningless bureaucratic paper shuffling afforded appellee before
his discharge would surely not alone satisfy the stringent demands
of due process when such an important interest is at stake.
The decisions of this Court compel the conclusion that a worker
with a claim of entitlement to public employment absent specified
cause has a property interest protected by the Due Process Clause,
and therefore
Page 416 U. S. 227
the right to an evidentiary hearing before an impartial
decisionmaker prior to dismissal. Accordingly, I would affirm the
decision of the court below that appellee had been discharged in
violation of his procedural due process rights.
II
The court below also held that the provision of the Lloyd-La
Follette Act which authorizes dismissal of tenured Government
employees for "such cause as will promote the efficiency of the
service" is unconstitutionally vague and overbroad. [
Footnote 5/30]
There is no dispute that the phrase
"'such cause as will promote the efficiency of the service,' as
a standard of employee job protection, is without doubt intended to
authorize dismissal for speech,"
ante at
416 U. S. 160.
The majority finds this permissible because, in
Pickering v.
Board of Education, 391 U. S. 563,
391 U. S. 568
(1968), we observed that
"the State has interests as an employer in regulating the speech
of its employees that differ significantly from those it possesses
in connection with the regulation of the speech of the citizenry in
general."
But the majority seems to have ignored the passage in
Pickering that directly precedes the quoted material:
"[T]o suggest that teachers may constitutionally be compelled to
relinquish the First Amendment rights
Page 416 U. S. 228
they would otherwise enjoy as citizens to comment on matters of
public interest in connection with the operation of the public
schools in which they work, . . . proceeds on a premise that has
been unequivocally rejected in numerous prior decisions of this
Court.
E.g., Wieman v. Updegraff, 344 U. S.
183 (1952);
Shelton v. Tucker, 364 U. S.
479 (1960);
Keyishian v. Board of Regents,
385 U. S.
589 (1967)."
391 U.S. at
391 U. S.
568.
The importance of Government employees' being assured of their
right to freely comment on the conduct of Government, to inform the
public of abuses of power and of the misconduct of their superiors,
must be self-evident in these times. In
Pickering, this
Court specifically upheld the right of a public employee to
criticize the conduct of his superiors.
Id. at
391 U. S.
573-574. In fact, it appears that one of the primary
purposes of the Lloyd-La Follette Act was to protect such criticism
from official retribution. Senator La Follette gave the following
example of an abuse sought to be cured by the bill:
"The cause for [the employee's] dismissal was that he gave
publicity to the insanitary conditions existing in some part of the
post office building in Chicago where the clerks were required to
perform their services. . . . [H] e furnished some facts to the
press of Chicago, and the publication was made of the conditions.
They were simply horrible. . . . The public health officers of
Chicago, as soon as their attention was called to the conditions,
condemned the situation as they found it; and yet this young man,
one of the brightest fellows I have met, was removed from the
service because, he had given publicity to these outrageous
conditions."
48 Cong.Rec. 10731 (1912).
Page 416 U. S. 229
The "efficiency of the service" standard would appear to bring
within its reach, as permissible grounds for dismissal, even
truthful criticism of an agency that in any way tends to disrupt
its operation. One can be sure, for example. that the young man's
criticism in Senator La Follette's example disrupted the operation
of the Chicago Post Office. It seems clear that the standard could
be construed to punish such protected speech.
The majority purports to solve this potential overbreadth
problem merely by announcing that the standard in the Act "excludes
protected speech." Nonetheless, it leaves the statutory standard
intact, and offers no guidance other than general observation as to
what conduct is or is not punishable. [
Footnote 5/31] The Court's answer is no answer at all.
To accept this response is functionally to eliminate overbreadth
from the First Amendment lexicon. No statute can reach and punish
constitutionally protected speech. The majority has not given the
statute a limiting construction, but merely repeated the
obvious.
The majority misunderstands the overbreadth principle, which
concerns the potential deterrent effect on constitutionally
protected speech of a statute that is overbroad or vague on its
face. The focus of the doctrine is not on the individual actor
before the court, but on others who may forgo protected activity
rather than run afoul of the statute's proscriptions. Hence, the
Court has reversed convictions where the subject speech could have
been punished under a more narrowly drawn statute because the
statute as drawn purported to cover, and
Page 416 U. S. 230
might deter others from engaging in, protected speech. The Court
explained this vagueness-overbreadth relationship in
Keyishian
v. Board of Regents, 385 U.S. at
385 U. S.
603-604:
"We emphasize once again that '[p]recision of regulation must be
the touchstone in an area so closely touching our most precious
freedoms,'
N.A.A.C.P. v. Button, 371 U. S.
415,
371 U. S. 438;"
"[f]or standards of permissible statutory vagueness are strict
in the area of free expression. . . . Because First Amendment
freedoms need breathing space to survive, government may regulate
in the area only with narrow specificity."
"
Id. at
371 U. S. 432-433. . . .
When one must guess what conduct or utterances may lose him his
position, one necessarily will 'steer far wider of the unlawful
zone. . . .'
Speiser v. Randall, 357 U. S.
513,
357 U. S. 526. For '[t]he
threat of sanctions may deter . . . almost as potently as the
actual application of sanctions.'
N.A.A.C. P. v. Button,
supra, at
371 U. S. 433. The danger of
that chilling effect upon the exercise of vital First Amendment
rights must be guarded against by sensitive tools which clearly
inform [public employees] what is being proscribed."
By the uncertainty of its scope, the standard here creates the
very danger of a chilling effect that concerned the Court in
Keyishian. [
Footnote
5/32] Employees are likely to limit
Page 416 U. S. 231
their behavior to that which is unquestionably safe, for "the
threat of dismissal from public employment is . . . a potent means
of inhibiting speech."
Pickering, 391 U.S. at
391 U. S. 574.
The dismissal standard hangs over their heads like a sword of
Damocles, threatening them with dismissal for any speech that might
impair the "efficiency of the service." That this Court will
ultimately vindicate an employee if his speech is constitutionally
protected is of little consequence -- for the value of a sword of
Damocles is that it hangs -- not that it drops. For every employee
who risks his job by testing the limits of the statute, many more
will choose the cautious path and not speak at all.
The District Court found that,
"[b]ecause employees faced with the standard of 'such cause as
will promote the efficiency of the service' can only guess as to
what utterances may cost them their jobs, there can be little
question that they will be deterred from exercising their First
Amendment rights to the fullest extent."
I agree with that characterization of the effect of the
standard, and would, therefore, uphold the conclusion of the
District Court that the statute is unconstitutionally vague and
overbroad.
I respectfully dissent.
[
Footnote 5/1]
5 U.S.C. § 7501(a).
[
Footnote 5/2]
One noted commentator has observed:
"Changes in the forms of wealth are not remarkable in
themselves; the forms are constantly changing, and differ in every
culture. But today more and more of our wealth takes the form of
rights or status, rather than of tangible goods. An individual's
profession or occupation is a prime example. To many others, a job
with a particular employer is the principal form of wealth. A
profession or job is frequently far more valuable than a house or
bank account, for a new house can be bought, and a new bank account
created, once a profession or job is secure."
Reich, The New Property, 73 Yale L.J. 733, 738 (1964).
"Society today is built around entitlement, [and m]any of the
most important of these entitlements now flow from government. . .
. Such sources of security . . . are no longer regarded as luxuries
or gratuities; to the recipients, they are essentials, fully
deserved, and in no sense a form of charity."
Reich, Individual Rights and Social Welfare: The Emerging Legal
Issues, 74 Yale L.J. 1245, 1255 (1965).
[
Footnote 5/3]
Board of Regents v. Roth, 408 U.
S. 564,
408 U. S.
576-578 (1972);
Perry v. Sindermann,
408 U. S. 593,
408 U. S.
599-603 (1972).
[
Footnote 5/4]
Wilkie v. O'Connor, 261 App.Div. 373, 375, 25 N.Y.S.2d
617, 620 (1941).
[
Footnote 5/5]
The mechanism for welfare terminations is described in
Goldberg v. Kelly, 397 U. S. 254,
397 U. S.
258-260 (1970). In short, the procedure involved prior
notice and an opportunity to respond in writing before termination,
as well as a full trial-type hearing before an independent state
official after the termination had been effected. If the recipient
prevailed at the later hearing, he would be entitled to recover any
funds wrongfully withheld.
[
Footnote 5/6]
Although
Perry v. Sindermann, supra, did not involve a
statutorily created interest, it is plainly analogous in that the
de facto tenure program on which Sindermann's claim of
entitlement was grounded did not explicitly include the right to a
hearing.
[
Footnote 5/7]
In a leading case decided many years ago, the Court of Appeals
for the District of Columbia Circuit held that procedural due
process protections did not apply to Government employment because
it was merely a privilege, and not a right.
Bailey v.
Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46 (1950),
aff'd
by an equally divided Court, 341 U.S. 918 (1951). As we have
previously observed, "[t]he basis of this holding has been
thoroughly undermined in the ensuing years."
Board of Regents
v. Roth, 408 U.S. at
408 U. S. 571
n. 9. "[T]he Court has fully and finally rejected the wooden
distinction between
rights' and `privileges'. . . ."
Id. at 408 U. S. 571.
For example, the Court has found constitutional restraints
applicable to disqualification for unemployment compensation,
Sherbert v. Verner, 374 U. S. 398
(1963); denial of a tax exemption, Speiser v. Randall,
357 U. S. 513
(1958); termination of welfare benefits, Goldberg v. Kelly,
supra; and dismissal from public employment, e.g.,
Slochower v. Board of Higher Education, 350 U.
S. 551 (1956).
[
Footnote 5/8]
Merrill, Report in Support of Recommendation 72-8, Procedures
for Adverse Actions Against Federal Employees, in 2 Recommendations
and Reports of the Administrative Conference of the United States
1007, 1016 (1972) (hereinafter Merrill).
[
Footnote 5/9]
Ibid. The report of the Administrative Conference seems
to bear out my Brother DOUGLAS' recent observation:
"Once there is a discharge from a . . . federal agency,
dismissal may be a badge that bars the employee from other federal
employment. The shadow of that discharge is cast over the area
where private employment may be available."
Sampson v. Murray, 415 U. S. 61,
415 U. S. 95
(1974) (dissenting).
[
Footnote 5/10]
Merrill 1014 n. 33.
[
Footnote 5/11]
This case presents no question as to the requirements of due
process "where there are no factual issues in dispute or where the
application of the rule of law is not intertwined with factual
issues."
Goldberg v. Kelly, 397 U.S. at
397 U. S. 268
n. 15;
see Mills v. Richardson, 464 F.2d 995, 1001 (CA2
1972);
cf. FCC v. WJR, 337 U. S. 265,
337 U. S.
275-277 (1949); l K. Davis, Administrative Law Treatise
412 (1958).
[
Footnote 5/12]
See ante at
416 U. S.
137-138.
Cf. T. Arnold, Fair Fights and Foul
151 (1965) (describing the potential abuse in a situation where the
head of a department is the decisionmaker in a public employee
discharge proceeding).
[
Footnote 5/13]
The discharged employee is entitled to a full trial-type
proceeding before a single examiner who may not occupy a position
directly or indirectly under the jurisdiction of the official who
proposed the dismissal or who bears ultimate responsibility for
that decision. The examiner's decision is afforded substantial
weight; if it is rejected, the rejection must be accompanied by a
full statement of reasons that is subject to review. Both the
employee and the agency may produce, examine, and cross-examine
witnesses under oath or affirmation, and documentary evidence may
also be introduced. Rigorous trial formality is avoided, and care
taken not to place an uncounseled employee at a disadvantage.
See Merrill 1038-1040; 5 CFR §§ 771.209-771.211
(1972).
[
Footnote 5/14]
The procedure in
Goldberg also involved a
pre-termination right of reply and a full trial-type hearing after
termination,
see 416
U.S. 134fn5/5|>n. 5,
supra, but the scheme was
nonetheless found not to satisfy due process requirements, and a
full pre-termination hearing was required.
See O'Neil, Of
Justice Delayed and Justice Denied; The Welfare Prior Hearing
Cases, 1970 Sup.Ct.Rev. 161, 169.
[
Footnote 5/15]
See 416
U.S. 134fn5/9|>n. 9,
supra, and
416
U.S. 134fn5/19|>n. 19,
infra.
[
Footnote 5/16]
Both MR. JUSTICE REHNQUIST and MR. JUSTICE WHITE dismiss the
need for a full prior hearing partially by reference to the Court's
decision in
Cafeteria Workers v. McElroy, 367 U.
S. 886 (1961). That case is entirely inapposite. First,
it involved not the dismissal for cause of a tenured civil service
employee, but rather the withdrawal of the security clearance of
the employee of a private contractor, which, in effect, barred the
worker from her job in the commissary at a military base. The
employer was prepared to employ the worker at another of his
restaurants, so the withdrawal of her security clearance was not
apt to cause the serious financial hardship that appellee's
dismissal from public employment might entail.
See Board of
Regents v. Roth, 408 U.S. at
408 U. S.
584-585 (DOUGLAS, J., dissenting). Moreover, the Court
has since read
Cafeteria Workers to be a case where the
Government's "exceptional" interest in national security justified
an abridgment of the right to a hearing.
Fuentes v.
Shevin, 407 U. S. 67,
407 U. S. 91 n.
23 (1972);
see Boddie v. Connecticut, 401 U.
S. 371,
401 U. S. 379
(1971).
[
Footnote 5/17]
Merrill 1014 n. 33
[
Footnote 5/18]
Id. at 1016.
[
Footnote 5/19]
My Brother REHNQUIST argues that the stigma imposed by dismissal
is only temporary, in that the discharged employee can clear his
name at the
post-hoc hearing, hence does not "foreclose
his freedom to take advantage of other employment opportunities."
Board of Regents v. Roth, 408 U.S. at
408 U. S. 573;
see 416
U.S. 134fn5/9|>n. 9,
supra. But the stigma of
outstanding charges would nonetheless be borne by the employee in
the interim period while he waits for his hearing and seeks
alternative employment to tide himself over.
[
Footnote 5/20]
See, e.g., Hearings on Postal Labor Relations and
Employee Morale before the Subcommittee on Postal Operations of the
House Committee on Post Office and Civil Service, 91st Cong., 1st
Sess. (1969); Kennedy, Adverse Actions in the Agencies -- Words and
Deeds -- Postal Adverse Action Procedures, 19 Am.U.L.Rev. 398, 412
(1970).
[
Footnote 5/21]
See, e.g., Ill.Rev.Stat., c. 48, § 432 (1973);
see
Christian v. New York Dept. of Labor, 414 U.
S. 614 (1974).
[
Footnote 5/22]
See Mandate for Merit: 1972 Annual Report of the United
States Civil Service Commission 665.
[
Footnote 5/23]
See, e.g., Central Union Trust Co. v. Garvan,
254 U. S. 554,
254 U. S. 566
(1921);
Phillips v. Commissioner, 283 U.
S. 589,
283 U. S. 597
(1931);
Ewin v. Mytinger & Casselberry, 339 U.
S. 594 (1950).
[
Footnote 5/24]
2 Merrill 1056.
[
Footnote 5/25]
Recommendation 78, Adverse Actions Against Federal Employees, in
2 Recommendations and Reports of the Administrative Conference of
the United States 73-75 (1972).
[
Footnote 5/26]
Merrill 1017, 1056-1057, 1060. Scheduling problems might be
largely overcome by more skillful use of personnel.
See
Goldberg v. Kelly, 397 U.S. at
397 U. S.
266.
[
Footnote 5/27]
As we observed,
id. at
397 U. S. 267
n. 14, due process does not, of course, require two hearings. Under
current procedures, an employee is afforded one and sometimes two
post-hoc evidentiary hearings (one before the agency and
the other before the Civil Service Commission).
See
Merrill 1013, 1043. If an adequate review mechanism is maintained,
a single pre-termination hearing might obviate the need for these
later proceedings.
[
Footnote 5/28]
See, e.g., U.S. Dept. of Justice, Adverse Action
Hearings, Appeals and Grievance Policies and Regulations, c. 2
(Sept. 28, 1972); Recommendation 72-8, n. 25,
supra at �
B, 74. The notice requirement need not be any impediment to holding
the hearing within the 30-day period. In
Goldberg v. Kelly,
supra, at
397 U. S. 268,
for example, the Court found a seven-day period between notice and
termination hearing constitutionally permissible.
[
Footnote 5/29]
Merrill 1033.
[
Footnote 5/30]
Other cases in this area hardly provide substantial guidance as
to what speech is or is not protected.
See, e.g., Pickering v.
Board of Education, 391 U. S. 563,
391 U. S. 570
n. 3 (1968). Nor do the extant regulations provide substantial
guidance; they merely repeat the language of the statute and
provide examples as unelucidating as the particular regulation
relevant to this case which proscribed
"any action . . . which might result in, or create the
appearance of . . . (c) [i]mpeding Government efficiency or economy
. . . [or] (f) [a]ffecting adversely the confidence of the public
in the integrity of the Government."
5 CFR § 735.201a;
see 45 CFR § 1015.735-1.
[
Footnote 5/31]
The Administrative Conference Report reserved particularly harsh
criticism for the "efficiency of the service" standard, terming it
"deficient both as a guide to agency management and as a warning to
employees of the sorts of behavior that will get them in trouble,"
warning that it is "an invitation to arbitrary action by government
agencies." Merrill 1054;
see id. at 1053.
[
Footnote 5/32]
Further refinement of the statutory "efficiency of the service"
standard, is not, as the majority implies, impossible. The
Administrative Conference points out that the agencies and the
Civil Service Commission "have developed a large, still essentially
secret body of law on the meaning of
efficiency.'" Merrill
1054. Reference to this body of precedent might well serve as a
basis for the amplification of the statutory standard. Relevant
guidelines might, for example, distinguish between statements made
in an official, as opposed to a private, capacity, see
Pickering v. Board of Education, 391 U.
S. 563 (1968); between knowingly false statements and
those which are reasonably believed to be true, see, e.g.,
Pickering, supra, at 391 U. S. 569;
New York Times Co. v. Sullivan, 376 U.
S. 254, 376 U. S. 280
(1964); cf. Garrison v. Louisiana, 379 U. S.
64 (1964); Rosenbloom v. Metromedia, Inc.,
403 U. S. 29
(1971); and between statements which pertain to a legitimate
subject of public comment and those which disclose confidential
Government information, see Pickering, supra, at
391 U. S. 570
n. 3 and 391 U. S.
571-572; cf. Time, Inc. v. Hill, 385 U.
S. 374 (1967).