Arnett v. Kennedy, 416 U.S. 134 (1974)

Arnett v. Kennedy

No. 72-1118

Argued November 7, 1973
Decided April 16, 1974
416 U.S. 134

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

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 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 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. 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. 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.

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. 164. WHITE, J., filed an opinion concurring in part and dissenting in part, post, p. 171. DOUGLAS, J., filed a dissenting opinion, post, p. 203. MARSHALL, J., filed a dissenting opinion, in which DOUGLAS and BRENNAN, JJ., joined, post, p. 206.