592 F.2d 770 (5th Cir. 1979), 76-3988, Porter v. Califano

Docket Nº:76-3988.
Citation:592 F.2d 770
Party Name:Ella S. PORTER, Plaintiff-Appellant, v. Joseph A. CALIFANO, Jr., Individually and in his capacity as Secretary of the U. S. Department of Health, Education, and Welfare, et al., Defendants- Appellees.
Case Date:March 26, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 770

592 F.2d 770 (5th Cir. 1979)

Ella S. PORTER, Plaintiff-Appellant,


Joseph A. CALIFANO, Jr., Individually and in his capacity as

Secretary of the U. S. Department of Health,

Education, and Welfare, et al.,

Defendants- Appellees.

No. 76-3988.

United States Court of Appeals, Fifth Circuit

March 26, 1979

Page 771

Carl E. Chamblee, Birmingham, Ala., Judson H. Miner, Chicago, Ill., for plaintiff-appellant.

Wayman G. Sherrer, U. S. Atty., Henry I. Frohsin, Asst. U. S. Atty., Birmingham, Ala., Sandra H. Shapiro, Deputy Asst. Gen. Counsel, for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before SKELTON [*], Senior Judge, GOLDBERG and FAY, Circuit Judges.

GOLDBERG, Circuit Judge:

This case involves the constitutional and statutory rights of a federal employee punished for speaking. In recent years Congress and the courts have come a long way in expanding and fortifying those rights and in conferring on public employees citizenship of the first class. This decision is another episode in that journey.

Appellant Ella Porter was suspended without pay for thirty days from her clerk-typist job at the Southeastern Program Center of the Social Security Administration in Birmingham, Alabama. Porter was suspended primarily for writing and distributing a letter which, among other things, sharply criticized two of her superiors, appellees Listerman and Bruce. The suspension and appeal procedures in the Social Security Administration and the Civil Service Commission did not afford Porter an evidentiary hearing or discovery. After exhausting her administrative appeals, Porter sought review of the agency action in the federal district court by filing a complaint alleging the suspension violated her First and Fifth Amendment rights. 5 U.S.C. 706(2). 1 Porter requested and then moved to compel discovery. The district court neither ruled nor commented on Porter's discovery motion. Instead, the court granted defendants' motion for summary judgment. Porter appealed to this court the lower court's grant of summary judgment.

Porter claims that her Fifth Amendment right to due process was violated because she was suspended without being allowed a full evidentiary hearing and that her First Amendment right of free speech was violated because she was punished for making protected speech. The district court held that the Fifth Amendment did not require a full hearing when a public employee was suspended for thirty days. Relying mainly on the "rudimentary hearing" doctrine in Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1974), and distinguishing Arnett v. Kennedy, 446 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) and Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) on the ground they involved more serious deprivations of property, the lower court found the more limited process specified in the controlling statute, 5 U.S.C. § 7501, and the administrative regulations, 5 C.F.R. § 752.301 et seq., and provided by the agency, to be constitutionally adequate

Page 772

for the more limited deprivation of property at stake. On the First Amendment claim, the lower court upheld the suspension in a single conclusory paragraph. At somewhat greater length the court reviewed the suspension on the merits under an extremely deferential standard of review gleaned from the Administrative Procedures Act. Specifically, the court found there was "substantial evidence to support the adverse action against" Porter and that the "action was not arbitrary, capricious, or an abuse of discretion." The court emphasized the limited nature of its review by adding: "This is the court's opinion, although if this court were considering the evidence de novo it quite possibly would make a different decision from that made by the agency."

We find that summary judgment on Porter's First Amendment claim was not proper in this case given the existence of several genuine issues of material fact. Fed.R.Civ.P. 56(c). Sartor v. Arkansas Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967 (1944). Moreover, it is improper to rely heavily on the investigative findings and conclusions of an interested agency in a case such as this involving delicate and complex matters of an individual's constitutional right against the government, 2 especially where, as here, agency fact-finding procedures were inadequate. "The balancing here of First Amendment freedoms against an asserted governmental interest requires the judgment of the District Court. See A Quaker Action Group v. Morton, 148 U.S.App.D.C. 346, 352, 460 F.2d 854, 860 (1971)." Ring v. Schlesinger, 164 U.S.App.D.C. 19, 30, 502 F.2d 479, 490 (1974).

In almost identical circumstances the D.C. Circuit Court in Ring v. Schlesinger, supra, held improper the district court's grant of the government's summary judgment motion.

In addition, we find that in this case Porter has a statutory right to a full evidentiary hearing in district court under 5 U.S.C. § 706(2)(F). Section 706(2)(F) authorizes the court to conduct a de novo review of agency findings and conclusions which are based on inadequate fact-finding by the agency.

For these reasons, we remand this case to the district court for a full hearing. The hearing which the district court will give Porter, however, clearly satisfies the requirements of the due process clause of the Fifth Amendment. Therefore we reject Porter's claim that the agency cannot suspend her unless it also gives her a full evidentiary hearing. We need not reach the constitutional question of whether a suspended government employee is entitled to a hearing under the 5th Amendment, as held in Keane v. Berry, 416 F.Supp. 858 (D.Ariz.1976) because we find that given the circumstances of this case Porter is entitled to a judicial hearing.

Finally, we also rule that the agency acted arbitrarily and capriciously in suspending Porter in part for her cautious behavior during interviews with the official she had accused of corruption.


A. Our first question is whether the lower court erred in granting the Government's motion for summary judgment.

Summary judgment is authorized only if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Sartor v. Arkansas Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967 (1944). The function of the court on a summary judgment motion "is limited to ascertaining whether any factual issue pertinent to the controversy exists; it does not extend to resolution of any such issue." Nyhus v. Travel Management Corporation, 151 U.S.App.D.C. 269, 271, 466 F.2d 440, 442 (1972). On the appeal here from summary judgment for the Government, this court as the reviewing tribunal must give to appellant as the party against whom summary judgment was entered the most favorable view of the record. Libby v. L. J. Corporation, 101 U.S.App.D.C. 87, 247 F.2d 78 (1957).

Page 773

We look to the Supreme Court case of Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and its progeny for the test in determining whether Porter was properly disciplined for her speech. In Pickering the Supreme Court said the First Amendment requires a balancing test between the interest of the employee in commenting on matters of public concern and the interest of the Government, as an employer, in promoting the efficiency of the public services it performs through its employees. Id. 88 S.Ct. at 1735. In applying this test, the Court articulated several of the factors which might be considered. Significantly, the Court noted it is relevant whether the employee's speech raised a "question of maintaining either discipline by immediate superiors or harmony among coworkers," Id., or interfered with the regular operation of the office generally. Id. at 1737. The Court also asked whether the employee who criticized his superiors had "the kind of close working relationships (with supervisors he criticized) for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning." Id. at 1735. 3 And the Court asked whether the speech impeded the employee's proper performance of his daily duties. Id. at 1737. The Fifth Circuit clarified this question in Smith v. United States, 502 F.2d 512, 517 (5th Cir. 1974), holding that:

In order for the government to constitutionally remove an employee from government service for exercising the right of free speech, it is incumbent upon it to clearly demonstrate that the employee's conduct substantially and materially interferes with the discharge of duties and responsibilities inherent in such employment. Battle v. Mulholland, 439 F.2d 321 (5th Cir. 1971).

502 F.2d at 517.

On the other side of the balance a court must consider the values of First Amendment protection. Here the Court in Pickering emphasized "(t)he public interest in having free and unhindered debate on matters of public importance." Pickering, supra, 88 S.Ct. at 1737. More specifically the Court added "that statements by public officials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors." Id. To these factors listed in Pickering, we would add one other. Since the First Amendment also concerns the right and need of the society's citizens to receive information helpful to their economic, social, and political activities, Virginia State Board of Pharmacy v. Virginia Citizens Consumers Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 1823, 1826-27, 48 L.Ed.2d 346 (1976), we note it is relevant whether citizens have access to the information contained in the employee's speech...

To continue reading