Thompson v. Gallagher, 73-1415.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation489 F.2d 443
Docket NumberNo. 73-1415.,73-1415.
PartiesTommy THOMPSON, Plaintiff-Appellant, v. Honorable Harry K. GALLAGHER, Mayor for the City of Plaquemine, Louisiana, Defendant-Appellee.
Decision Date13 February 1974

COPYRIGHT MATERIAL OMITTED

William E. Rittenberg, New Orleans, La., Melvin L. Wulf, Leon Friedman, ACLU, New York City, for plaintiff-appellant.

Joseph B. Dupont, Sr., Plaquemine, La., for defendant-appellee.

Before TUTTLE, DYER and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

Tommy Thompson served in the United States Army for 22 months before being discharged under other than honorable conditions on May 14, 1970. He went to work for the City of Plaquemine, Louisiana, on December 16, 1971, as custodian at the city diesel plant. Five weeks later, the city council passed the following ordinance:

Resolved, that any person employed by the City of Plaquemine or by the Emergency Employment Act, if said person is a veteran, must have an Honorable Discharge and must be a man of good character.

The day after the ordinance was passed, the City of Plaquemine fired Thompson because his employment violated the ordinance. Thompson sued the Mayor of Plaquemine under 42 U.S.C. § 1983, charging that his dismissal violated his rights under the due process and equal protection clauses of the Fourteenth Amendment, that it was a bill of attainder and that it was an ex post facto law. Jurisdiction was asserted under 28 U.S.C. §§ 1331, 1343, 2201 and 2202. Thompson sought a declaration that the ordinance as applied to him is unconstitutional, an injunction restraining the mayor from applying the ordinance to him, and an order reinstating him to his position at the power plant, with compensation for wages lost as a result of the dismissal.

After a hearing on the merits, the District Court for the Middle District of Louisiana entered judgment for the defendant on the ground that the dismissal pursuant to the ordinance violated none of Thompson's rights. Thompson appeals.

I.

The first question we must consider is whether Thompson's interest in his job is protected by the Fourteenth Amendment.1 Faced with the question of whether a state government as employer must comply with the requirements of due process in its employment practices, some courts have concluded that since a job with the government is neither life, liberty nor property, courts may not review the hiring and firing of government personnel. See, e. g., 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, 71 S.Ct. 669, 95 L.Ed. 1352 (1951), Jenson v. Olson, 353 F.2d 825, 828 (8 Cir., 1965), and Orr v. Trinter, 444 F.2d 128, 133 (6 Cir., 1971).

The intellectual progenitor of all these cases is McAuliffe v. Mayor of City of New Bedford, 155 Mass. 216, 29 N.E. 517 (1892). Judge (later Justice) Holmes summarily rejected a policeman's complaint that he had been fired because he exercised his rights under the First Amendment, saying simply,

the petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. 155 Mass. at 220, 20 N.E. at 517.

Notwithstanding Holmes' distinguished imprimatur, we feel that this reasoning does not come to grips with the question in cases such as this. The real question is whether the Fourteenth Amendment's prohibition against governmental actions which violate due process of law reaches a government's actions as employer. We feel that it does.

The Fourteenth Amendment is a general prohibition against arbitrary and unreasonable governmental action. It no longer suffices to say that although a government may not deprive someone of a right arbitrarily, it may do so in the case of a privilege. Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), Shapiro v. Thompson, 394 U.S. 618, 627 n. 6, 89 S. Ct. 1322, 22 L.Ed.2d 600 (1969). The right-privilege distinction has been rejected as a method of analysis in Fourteenth Amendment cases, because the question is not whether a person has a right to something denied by the government, but whether the government acted lawfully in depriving him of it. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), and cases cited therein at 539, 91 S.Ct. at 1589, "One may not have a constitutional right to go to Baghdad, but the government may not prohibit one from going there unless by means consonant with due process of law." Homer v. Richmond, 110 U.S.App.D.C. 226, 292 F.2d 719, 722 (1961), cited in Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 894, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961).

II.

In the context of public employment, the question of whether employment is protected by the Fourteenth Amendment usually arises when an employee is dismissed for actions which may be characterized as the exercise of some other specifically defined constitutional right. In Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956), a tenured professor was dismissed from his position at Brooklyn College for asserting his Fifth Amendment privilege against self-incrimination at a Congressional hearing. The court held the dismissal invalid both because it punished assertion of constitutional rights and because "constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory." 350 U.S. at 556, 76 S.Ct. at 640. Slochower was reaffirmed recently in Connell v. Higginbotham, 403 U.S. 207, 91 S.Ct. 1772, 29 L.Ed.2d 418 (1971).

As precedent for the latter proposition, the court relied on Wieman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 97 L.Ed. 216 (1952), in which certain staff and faculty members of the Oklahoma Agricultural and Mechanical College were fired for refusing to take an oath disclaiming membership in certain allegedly subversive organizations. The court invalidated the dismissals, holding that the oath lumped together innocent and knowing activity, and as such was an assertion of arbitrary power. 344 U.S. at 191, 73 S.Ct. 215.

In Hobbs v. Thompson, 448 F.2d 456 (5 Cir., 1971), this court invalidated sections of the city charter and ordinances of Macon, Georgia, which restricted electioneering activities of that city's firemen. We held there that the statutory scheme was overbroad and interfered with the firemen's First Amendment rights. In doing so, we specifically relied on the proposition in Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811, that "`the theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.' Keyishian v. Board of Regents, 385 U.S. 589, 605-606, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967)." 448 F.2d at 474.

This case differs somewhat from the Weiman-Slochower-Pickering line of cases since it involves no constitutional right other than the right to be free from arbitrary and unreasonable government action. But the same reasoning applies. Just as a public employee does not give up his First Amendment rights when he begins receiving a pay check from the government, neither does he give up his right to due process of law. The Fourteenth Amendment stands for the proposition that the government must act, when it acts, in a manner which is neither arbitrary nor unreasonable. This stricture is in addition to those which restrict the government from acting in a manner which impinges on freedom to speak or associate, or to be free from self-incrimination. It is one which most certainly applies not only to the government as policeman but also to the government as employer. Public employees are every bit as protected by the Fourteenth Amendment's safeguards as is the rest of the populace. Grausam v. Murphey, 448 F.2d 197 (3 Cir., 1971), Buckley v. Coyle Public School System, 476 F.2d 92 (10 Cir., 1973), Fitzgerald v. Hampton, 152 U.S.App.D.C. 1, 467 F.2d 755 (1972).

III.

Having determined that Thompson's dismissal must be evaluated according to Fourteenth Amendment standards, we turn now to the question of whether the city's dismissal of him violates due process or equal protection. Thompson was dismissed pursuant to a city ordinance forbidding the employment by the city of any veteran not having an honorable discharge from the armed forces. The ordinance thus creates two different classifications. First, it divides the employees of the city into veterans and non-veterans. In addition, it distinguishes between veterans with honorable discharges and those with other than honorable discharges.

Thompson attacked the ordinance on both equal protection and due process grounds. In many cases, of which this is one, it makes little difference which clause of the Fourteenth Amendment is used to test the statute in question. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). The question is whether the challenged statute is a rational means of advancing a valid state interest. A regulation not reasonably related to a valid government interest may not stand in the face of a due process attack. Likewise, a classification which serves no rational purpose or which arbitrarily divides citizens into different classes and treats them differently violates the equal protection clause.

Although it is proper for a city to create different classes of citizens and treat them in different manners, the classifications thus created must serve a rational and valid governmental purpose. Thus, we are faced with two questions. Is there a valid governmental interest at stake in this case? Does the ordinance bear a rational relationship to the fulfillment of those interests?

In an effort to determine what interest of the City of Plaquemine was at stake in this ordinance, we have listened to oral argument, read the briefs presented by both parties, and...

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