Arnett v. Kennedy 8212 1118

• Citation: 94 S.Ct. 1633,416 U.S. 134,40 L.Ed.2d 15
• Decision Date: 16 April 1974
• Docket Number: No. 72,72
• Parties: Alvin J. ARNETT, Director, Office of Economic Opportunity, et al., Appellants, v. Wayne KENNEDY, etc., et al. —1118
• Court: United States Supreme Court

416 U.S. 134

94 S.Ct. 1633

40 L.Ed.2d 15

Alvin J. ARNETT, Director, Office of Economic Opportunity, et al., Appellants,

v Wayne KENNEDY, etc., et al.

No. 72—1118.

Argued Nov. 7, 1973.

Decided April 16, 1974.

Rehearing Denied June 17, 1974.

See 417 U.S. 977, 94 S.Ct. 3187.

Syllabus

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 preremoval 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; given 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 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. 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, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548. Pp. 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. 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, 578—579, 93 S.Ct. 2880, 2897, 37 L.Ed.2d 796. Pp. 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 is provided between the competing interests of the employee and the Government as employer. Pp. 164—171.

Daniel M. Friedman, Washington, D.C., for appellants.

Charles Barnhill, Jr. Chicago, Ill., for appellees.

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 Kennedy¹ was a nonprobationary federal em- ployee 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, the 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 state- ments made by him were protected by the First Amendment to the United States Constitution.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,³ appellee contended that the standards and procedures established by and under the Lloyd-La Follette Act for the removal of nonprobationary em- ployees 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.'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 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 sect...